Updated: Dec 20, 2020
Mr. Thomas Chan became intoxicated by consuming magic mushrooms, something he had done before. When he realized he was not high like his friends, he consumed more. A few hours later Mr.Chan’s behavior changed. He expressed that he was scared, began speaking gibberish and ran upstairs to his mother’s room where she and her boyfriend were sleeping. He began calling his mother and his sister “Satan” and “the Devil” and claimed to “see the light.” Mr. Chan then ran outside with only pants on, in below freezing and snowing weather, to his father's house, which was just around the corner. Although he had access to the front door, Mr. Chan broke in through a window. Mr. Chan did not seem to recognize his father and stabbed him repeatedly. His father died of his injuries. Mr.Chan also attacked his father’s partner. She did not think he recognized her either, he stabbed her in her abdomen, arm, back and chest, he also stabbed her right eye and slashed her neck.
The trial judge found that s. 33.1 violated s. 7 and 11(d) of the Charter but was saved under s. 1 of the Charter.
On December 1, 2013, after ingesting between 30 to 80 of the Wellbutrin tablets in a suicide attempt, Sullivan had a profound break with reality. He believed he had captured an Archon in the condominium living room. Believing his mother was an alien, he attacked her, stabbing her several times with two kitchen knives. Mr. Sullivan attempted to rely on the defense of non-mental disorder automatism but did not challenge the constitutional validity of s 33.1. He argued instead that s. 33.3 did not apply in his case since his intoxication was not voluntary. In the alternative, he invoked the mental disorder defense.
The trial judge rejected the mental disorder defence under s.16 of the criminal code because mental disorder was not caused the automatism, but by intoxication. The trial judge rejected the non-mental disorder automatism defence under section 33.1 because Mr. Sullivan’s intoxication had been voluntary.
Legislative & Charter Primer
Automatism is defined as “A state of impaired consciousness, rather than unconsciousness, in which an individual, though capable of action, has no voluntary control over that action. R v Stone,  2 S.C.R. 290, at para. 156.
A state of automatism must be established with the help of expert evidence, on a balance of probabilities (R v Daviault,  3 SCR 63 at pp 74,91).
Section 33.1 of the criminal code prohibits the use of “non-mental disorder automatism” as a defence where the state of automatism is self-induced by voluntary intoxication and the offence charged includes an element of assault or violence.
Section 1 of the Charter permits limits to be placed on guaranteed rights and freedoms as long as they can be “demonstrably justified in a free and democratic society".”
Section 7 of the Charter protects an individual’s right to life, liberty and security of the person and the right not to be deprived thereof “except in accordance with the principles of fundamental justice.”
Section 11(d) of the Charter enshrines the right to be presumed innocent until proven guilty.
1. Chan Appeal
Issue #1: Was the trial judge bound by precedent to accept the unconstitutionality of s. 33.1?
The trial judge is not bound by prior authority to treat s.33.1 as having no force and effect. In R v Dunn (1999), 28 C.R. (5th) 295 (Ont. S.C.) [“Dunn”] s. 33.1 was found to be unconstitutional by a superior court prior to Mr. Chan’s prosecution. The trial judge found the issue in Mr.Chan’s case and the issue in Dunn to be different, therefore he deviated from the decision in Dunn. Therefore, this ground for appeal is rejected.
Issue #2: Does s. 33.1 violates s. 7 and 11(d) of the Charter?
The trial judge was right that s. 33.1 violates s.7 and 11(d) of the Charter. However, s. 33.1 cannot be saved under s. 1 of the Charter.
There are “three breaches” when it comes to s. 33.1:
The Voluntariness Breach
It would be contrary to the principles of fundamental justice (Charter, s. 7) and the presumption of innocence (Charter s. 11(d)), to permit accused persons to be convicted for their involuntary acts, as those acts are not willed and therefore not truly the acts of the accused. R v Daviault,  3 SCR 63 at pp 74,91 [“Daviault”]. S. 33.1 is contrary to the voluntariness principle of fundamental justice and permits conviction without proof of voluntariness. The principles of fundamental justice require that voluntariness is an element of every criminal offence. It is also contrary to s.11(d) to convict someone where there is reasonable doubt about voluntariness.
The purpose of voluntariness is to ensure that individuals are convicted only of conduct they choose. What must be voluntary is the conduct that constitutes the criminal offence charged, in this case the assaultive attacks by Mr.Chan. It is the assaults to which voluntariness must attach to satisfy the Charter. In R v Theroux,  2 SCR 5, at p. 17, Justice McLachlin in speaking of the elements of the crime, said “the act must be the voluntary act of the accused for the actus reus to exist.”
2. The Improper Substitution Breach
It would be contrary to the presumption of innocence (s. 11(d)) to convict an accused person in the absence of proof of a requisite element of the charged offence, unless a substituted element is proved that inexorably or inevitably includes that requisite element. A prior decision to become intoxicated cannot serve as a substituted element because it will not include the requisite mental state for the offences charged: Daviault, at pp. 89-91.
As Daviault recognizes, at p. 91, substituting voluntary intoxication for the required elements of a charged offence violates s. 11(d) because doing so permits conviction where a reasonable doubt remains about the substituted elements of the charged offence. As the trial judge pointed out s.33.1 would purport to permit Mr.Chan to be convicted of manslaughter and aggravated assault without proof of the mental state required by those offences, namely, the intention to commit assaults. Proving voluntary intoxication does not necessarily prove the intention to commit assaults, let alone the assaults charged.
3. The Mens Rea Breach
It would be contrary to the principles of fundamental justice (Charter, s. 7) to convict accused persons where the accused does not have the minimum mens rea that reflects the nature of the crime: Daviault, at pp. 90-92.
In R v Creighton,  3 SCR 3 at pp.61-62, the SCC held that where an offence provides no other mens rea or “fault” requirement, the Crown must at least establish “penal negligence” to satisfy the principles of fundamental justice. Penal negligence is the minimum, constitutionally compliant level of fault for criminal offenses. The question becomes whether the fault imposed by s.33.1 satisfies the penal negligence standard? It does not. In Creighton the SCC defines penal negligence as negligence that constitutes a marked departure from the standard of a reasonable person. The concept of negligence that girds this standard, which is common to the tort of negligence, operates as an objective measure that involves an assessment of the relationship between an act or omission and a damaging consequence. “Negligence” is not based on whether the reasonable person intended or foresaw the damaging consequence, but on whether a reasonable person would have foreseen and avoided the risk that the damaging consequence could occur by not engaging in the alleged negligent act or omission. If so, this is civil negligence. For penal negligence to exist so that criminal liability can be imposed, the relevant risk must be reasonably foreseeable such that it not only falls below standards of ordinary prudence to engage in the risky behaviour but doing so amounts to a marked departure from standards of ordinary prudence Mustapha v Culligan Canada Ltd., 2008 SCC 27,  2 SCR 114, at paras 6-15.
In R v Bouchard- Lebrun, 2011 SCC 59 Justice Lebel J. set out elements of s.33.1 “The provision applies where three conditions are met: (1) the accused was intoxicated at the material time; (2) the intoxication was self-induced; and (3) the accused departed from the standard of reasonable care generally recognized in Canadian society by interfering or threatening to interfere with the bodily integrity of another person. [Citations omitted.]
A reasonable person in Mr.Chan’s position could not have foreseen that his self-induced intoxication might lead to assaultive behaviour, let alone a knife attack on his father and step-mother, people he loved. The implication is that a decision to become intoxicated to any degree is enough to trigger s.33.1, even where the accused person cannot reasonably expect that, as a result of that intoxication, they may become unaware of their behaviour or incapable of consciously controlling their behaviour.
The notion that it is a marked departure from the standards of the norm to become intoxicated, let alone mildly intoxicated, is untethered from social reality.
Issue #3: Can the violation be saved under s. 1 of the Charter?
NO! - S. 33.1 cannot be justified under s.1. Of the Charter.
In order for s. 33.1 to be justified under s.1 it must be demonstrated that s.33.1 has
A pressing and substantial purpose the accountability purpose is to hold individuals who are in a state of automatism due to self-induced intoxication accountable for their violent acts. The protective purpose is to protect potential victims, from violent acts committed by those who are in the state of automatism. Only the protecting purpose is pressing and substantial.
(a) rational connection describes the link between the legislative objective and the legislative means chosen to achieve the objective. Accountability is not a legitimate goal to employ to override Charter rights.
(b) Minimal impairment to show minimal impairment, the party seeking to justify the infringement must demonstrate that the impugned measure impais the right in questions ‘ as little as reasonably possible in order to achieve the legislative objective.” R v Morrison, 2019 SCC 15 at para 68. The trial judge found a minimal impairment, but the ONCA found s. 33.1 to not be minimally impairing.
(c) Overall proportionality entails the proper identification of the salutary or positive effects of the legislation, and its deleterious or negative effects on the Charter-protected interests at stake. The deleterious effects of s.33.1 are profound. S. 33.1 enables the conviction of individuals of alleged violence-based offences, even though the Crown cannot prove the requisite elements of those offences, which is contrary to the principles of fundamental justice and presumption of innocence. It enables the conviction of individuals for acts they do not will.
The Crown did not demonstrate the rational connection, minimal impairment or the proportionality required to save s.33.1
2. Sullivan Appeal
Issue #1: Whether Mr. Sullivan could use the constitutional invalidity of s.33.1 for the first time on appeal?
The constitutional invalidity of s.33.1 could be used on appeal.
Issue #2: Whether the trial judge made an error relying on s.33.1?
The trial judge made an error relying on s.33.1 because this provision is of no force and effect, as established in Chan.
Issue #3 Whether the trial judge erred in finding Mr. Sullivan guilty of breach of recognizance charges without proof that he knew of the terms of his recognizance?
Mr. Sullivan challenged the trial judge’s “assumption” that the conditions of the non-communication order would have been discussed at some, if not all, of his court appearances. The trial judge’s conclusion that the terms of the recognizance had been communicated to Mr. Sullivan is supported by uncontested facts.
Chan - S.33.1 of the Criminal code violates section 7 and 11(d) of the Charter and is not saved under s.1 of the Charter. Therefore, leaving s.33.1 of the Criminal code with no force and effect. Therefore, Mr. Chan’s appeal was allowed, and a new trial was ordered.
Sullivan - Given the conclusion in Chan that s.33.1 is of no force or effect, the trial judge erred in relying on s.33.1 and this ground for appeal is allowed. The appeal of Mr. Sullivan being found guilty for breach of recognizance fails, and the appeal is denied.
Mr. Sullivan’s appeal allowed from his convictions of aggravated assault, contrary to Criminal code s. 268(a). Those convictions set aside and substituted verdicts of acquittal. Mr. Sullivan’s appeal of his breach of recognizance rejected and convictions affirmed.
Read the full case here.