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Comments on the matter of self-induced intoxication, including self-induced extreme intoxication, in the context of criminal law, accompanying remarks to the Senate Standing Committee on Legal and Constitutional Affairs on Thursday, February 2, 2023.

By: Professor Steve Coughlan, Schulich School of Law.

Video of Professor Coughlan’s remarks can be viewed on the Senate website. His comments begin at 12:22:10 in the video.

On May 13, 2022, in R v Brown, 2022 SCC 18, the Supreme Court of Canada struck down section 33.1 of the Criminal Code, which removed the defence of intoxication akin to automatism in the case of violent offences. On June 23, 2022, Parliament approved a new version of section 33.1. Although approving that new law, the Senate simultaneously passed a motion that “the Standing Senate Committee on Legal and Constitutional Affairs be authorized to examine and report on the matter of self-induced intoxication, including self-induced extreme intoxication, in the context of criminal law, including in relation to section 33.1 of the Criminal Code.” I was invited to speak to the Committee on the topic, and was asked to prepare speaking notes to assist with simultaneous translation: these are those notes.

I would like to thank the Committee for the invitation to speak to you on this issue, and also for your flexibility around scheduling—I know you are all busy people, and I appreciate the opportunity to speak with you.

Let me start with the observation that the pandemic, and vaccine hesitancy, should have taught us a lesson: without a strong reason not to do so, we ought to rely on the scientific expertise of others who know more about a subject than we do. I say that because, in my experience, there’s a great deal of skepticism about “automatism” and “intoxication akin to automatism” out there: skepticism over whether they are conditions which truly exist, or whether they are just ruses, deceptions, used by guilty people to try to avoid criminal liability. I’m not a neurologist, or a psychiatrist, or anyone with expertise in the fields that would tell me whether they are real phenomena. But the experts say it is, and our courts have accepted it is, and that obliges us to take the conditions seriously. It is perfectly appropriate for a court to be skeptical about any individual’s claim to be in a state of intoxication akin to automatism, but legislation about how to proceed when such claims are established should not be tainted by skepticism.

You have heard from many people on this issue, presenting from many perspectives. My comments will certainly come at the issue from a legalistic perspective, I hope informed by sensible policy considerations. I apologize in advance if some of the things I say are basic and things you obviously already know, but it will be useful to rehearse some basic principles in order to explain my view.

The version of section 33.1 which was enacted in June of last year allows for a person to be convicted of an offence despite the lack of two things: general intent and voluntariness. This was enacted in response to the Supreme Court decision in Brown, finding problems with the way the former section 33.1 dealt with general intent and voluntariness. I will deal with each of those in turn. Briefly, my argument will be that the changed version solves the first problem but not the second.

To say that a person “didn’t have general intent” is to say something like they “didn’t intend to apply force” or “didn’t intend for the building to burn down” or “didn’t intend the window to break” or “didn’t intend to take someone else’s property.” Allowing for a person to be convicted without such general intent is not necessarily a big deal. Most offences are based on subjective fault—you aren’t guilty unless you did know the goods were stolen—but sometimes we depart from that. We have crimes based on objective fault—on negligence—like dangerous operation of a conveyance, or criminal negligence. There’s no fundamental problem with that, barring a few offences where the Charter requires that there must be subjective fault. But generally, there’s no problem with an offence having objective fault.

Where there is a problem is when an offence has no fault elements—what is called “absolute liability”—where we say to an accused “you did it, and we don’t care whether you intended to or even whether you took reasonable precautions to stop it: all we care is that you did it.” Again, it’s not that our justice system never does that—speeding is the most straightforward example. We don’t care whether a person knew they were speeding, or whether they could have known they were speeding—we just care that they were. I say that’s a problem, and the Court has said that it’s a problem, because it is fundamentally unfair. Nonetheless, we allow it—but only in a very limited range of situations. As a general proposition, getting a ticket for speeding is not a big deal. It generally has no long-term consequences or major impact on a person’s life, so although arguably it is a little unfair to the individual to convict them in the absence of any guilty mental state, that concern is outweighed by the general societal interest in reducing speeding. On the other hand, the Supreme Court has said, where it’s not just a matter of getting a ticket, of paying a fine—where the penalty could include going to jail—well, then it’s not ok to have no fault elements, to have absolute liability.

I think the law should, as much as possible, intuitively make sense and correspond to our feelings about what’s fair and what’s not, and I think that that approach does. It amounts to saying “where the stakes are low, the system can be a little more relaxed, but where the stakes are high, we have to be rigorous about being fair.” Most importantly, it’s saying “don’t let the low-stakes approach apply in high-stakes situations.”

That was, as you well know, one of the problems with the version of section 33.1 that was struck down in Brown. The old version said that a person without the general intent to commit the offence was still guilty if “their behaviour … interferes or threatens to interfere with the bodily integrity of another person.” It took out any requirement for a fault element, for any kind of blameworthy state of mind, and said the person was still guilty: it treated the offence as absolute liability, even in the case of serious criminal offences like sexual assault. And so, fundamentally, it used the low-stakes approach in high-stakes situations, which was properly seen as a problem.

What the new wording of section 33.1 does, in requiring “departed markedly from the standard of care expected of a reasonable person in the circumstances,” is to insist on the presence of a fault element—yes, an objective fault element, but some fault element. And as I said, that’s generally ok—objective fault will do for all but a few offences. That seems to me to mean that changing “interfered with bodily integrity”—a fact—to “departed markedly from the standard of care”—a fault element—is not only a good idea, but a constitutionally sufficient solution to the fault element problem that the SCC identified in Brown. It will no longer be true that a person could be convicted in the absence of any fault element.

But that wasn’t the only problem identified in Brown—or earlier, in Daviault. The other problem relates to involuntariness. And to go back to my point about the law intuitively making sense, I think the term “involuntariness” is distracting and potentially misleading. Imagine that someone who is much physically stronger than me takes my hand, forces a gun into it, and then forces my finger to pull the trigger back, thereby shooting my neighbour. If I were asked “why did you shoot your neighbour?,” I wouldn’t reply “it was involuntary,” I would reply “I didn’t, he did.” If someone ties me up and throws me out a window, I don’t answer the question “why did you jump out the window” by saying “I lacked voluntariness”: I just say “I didn’t.” We are all perfectly clear on the distinction between my body doing something, and me doing it.

When section 33.1 says that a person can be convicted despite a lack of voluntariness, what it’s saying is, fundamentally, that they can be convicted of the offence even though they didn’t do it. Literally, physically, didn’t do it. Their body was involved, sure, but it is an accurate statement to say “they didn’t do it.” Convicting such a person nonetheless should be seen as a big deal! This was recognized as a problem in Daviault, and recognized as a problem in Brown. It’s another major reason the Supreme Court had a problem with the rules which allowed this.

But—and this is a crucial thing—the changes to section 33.1 do nothing about this issue. They still allow an accused to be guilty of the underlying offence—the thing they didn’t do—if they departed markedly from the standard of care of a reasonable person back at the earlier time, when they became intoxicated. Adding in a “marked departure” requirement fixes the general intent issue, but it ignores that there was also an involuntariness issue.

I want to say “let’s try an analogy,” but what I will present is pretty close to literally the same situation as section 33.1 now creates. Let’s say someone takes my keys, locks me out of my office and while in my office commits an offence in there. Or alternatively, someone gets my log-in information, logs in to my account at the university, or the Senate, or wherever I work, and while using my account commits an offence.

It’s probably legitimate to say to me “you should have been more careful with your keys/log-in information.” It’s probably legitimate to say to me “you were negligent in caring for your keys/log-in information, and so we will hold you responsible for that.” But it is NOT legitimate to say “because the person committed a murder while in your office, you are guilty of murder,” or “because the person uttered threats through your account, you are guilty of uttering threats.” Even if I’m guilty of something, I ought to be able to say “but I didn’t do that!”

However, that’s exactly what section 33.1 prevents an accused from saying. The “marked departure” requirement amounts to “you should have been more careful,” but other wording of section 33.1, that the accused “nonetheless commits the offence” amounts to “whatever happened, theft of office supplies or sexual assault, pirating a movie or downloading child pornography, you’re guilty of that.” That doesn’t make sense. What we could appropriately find the accused responsible for is the failure to meet the reasonable person standard in their use of an intoxicant, but the way in which section 33.1 does that is to find them guilty of something else entirely, typically something more serious. To relate this back to the speeding example earlier, it creates the risk of using a low-stakes approach in a high-stakes situation.

This is, of course precisely why the Courts talk, in both Daviault and Brown, about alternatives which find the accused guilty of something other than the underlying offence. There was discussion of the possibility, at the Ontario Court of Appeal level in Brown, of a stand-alone offence of criminal intoxication. Also, this approach had been discussed before the original section 33.1 was put in the Code, but as noted in Brown the Minister of Justice at the time felt it created a “drunkenness discount.” That presumes, of course, that the penalty for the “negligent intoxication” offence is lower than whatever offence the person is charged with, which isn’t necessarily true.

It also presumes that there is only one “negligent intoxication” offence, but that needn’t be the case. A very common model for offences is that “X is an offence, X causing bodily harm is a more serious offence, and X causing death is even more serious.” There’s no reason a stand-alone offence could not follow that pattern, since it is Charter-compliant to vary the penalty for an offence based on the actual harm which is caused.

I recognize that the analogy to losing control over a room or a laptop will be unpersuasive to some, but I come back there to my starting point—that we have to not be skeptical about scientific expertise. To some, it might feel that “a person’s body acting while in a state of extreme intoxication” is not really involuntariness in the sense of having a gun forced in your hand or being locked out of your office. But if “intoxication akin to automatism” is, as a matter of science, a real thing, then it is exactly analogous. If I am in such a state, then something other than me has the keys, or the log-in information, to my brain. If we can’t get past the feeling that the analogy is wrong, then confront the science: if the science is wrong, don’t do anything about this issue at all! But if there is a need, then we should take it seriously.

Concluding words. The concern I’m raising over the involuntariness issue could be seen as a focus on conceptual purity, and undoubtedly conceptual purity sometimes has to give way to practicality in the criminal law. But there has to genuinely be some practicality at stake! No one challenges that the circumstances in which this type of extreme intoxication will arise are extraordinarily rare. Beyond that, as noted in Daviault, there are obvious difficulties in showing that it is true even when it is true. When briefly available, the occasions on which it was pleaded were negligible, and it did not succeed in most of those. There’s a reason it took several decades for section 33.1 to end up in front of the Supreme Court. Even if there could be seen to be a problem, it is a small-scale one, certainly not one that warranted a rush to legislation, where a new law was first enacted, and then the issue of whether there was a need for the law is considered.