This case concerns the ability to use self-induced extreme intoxication as a defence to assault and sexual assault offences.  

LEAF intervened before the Ontario Court of Appeal, and the Supreme Court of Canada. 

Facts 

Mr. Sullivan and Mr. Chan each committed violent physical assaults after they had voluntarily consumed drugs. They argued that they did not have the intent to commit the assaults, as a result of their intoxication. A provision of the Criminal Code, however, states that accused persons cannot use self-induced extreme intoxication as a defence to offences including assault, sexual assault, and manslaughter.  

At trial, Mr. Chan argued that the provision violated the Charter, because it meant they would be penalized for acts they did not intend to do. The trial judge found that the provision violated ss. 7 and 11(d) of the Charter, but was saved under s. 1. Mr. Sullivan did not challenge the constitutionality of the provision at his trial. Both men appealed their convictions to the Ontario Court of Appeal.  

Arguments 

LEAF argued that the constitutionality of the provision needed to be assessed in the context of women’s s. 15 equality rights. In enacting this provision, Parliament was focused on protecting the rights of women and children, recognizing that violence disproportionately impacts them. The assessment of whether the provision violated s. 7 of the Charter needed to consider and balance all of the Charter rights engaged by the provision, particularly the equality and security rights of women and children.   

Outcome 

The Ontario Court of Appeal found that section 33.1 of the Criminal Code breaches the Charter rights of accused people and was, therefore, no longer in effect in Ontario.

The Supreme Court of Canada held that s. 33.1 violated the constitutional rights of accused persons, and struck down the provision. The Court clearly stated, however, that this does not mean that drunkenness without automatism can be used as a defence to sexual assault charges. The Court also agreed with LEAF that the rights of women and children “are intensely important and must be given full consideration under the Charter analysis.”

LEAF is grateful to Megan Stephens and Lara Kinkartz, counsel in this case.

Download the Ontario Court of Appeal factum here.

Read the Ontario Court of Appeal’s decision here.

Download the Supreme Court of Canada factum here.  

Read the Supreme Court of Canada’s decision here.

LEAF’s interventions are all guided, informed and supported by a case committee composed of academics and practitioners with expertise in the relevant issues. The case committee members for the intervention at the Ontario Court of Appeal were Karen Bellehumeur, Janine Benedet, Isabel Grant, Elizabeth Sheehy, and Adriel Weaver. LEAF gratefully acknowledges their contributions to the arguments in this factum. 

The case committee members for our intervention at the Supreme Court of Canada were: Karen Bellehumeur (Bellehumeur Law); Rosemary Cairns Way (University of Ottawa); Frances Chapman (Lakehead University); Alanna Courtright (St. Joseph Healthcare Hamilton); Daphne Gilbert (University of Ottawa); Farrah Khan (Ryerson University); and Marie Manikis (McGill University).