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R v Brown: Constitutional Questions Answered, Normative Ones Raised
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“R. v. Brown[1] was not a decision just written for egg-head lawyers. This was a decision that really wanted to address society at large,” said Jody Berkes, past chair of the Canadian Bar Association’s criminal justice section. And society heard the message. In the weeks following the Supreme Court of Canada’s unanimous decision in Brown, protests were held, powerful commentary written, and swift parliamentary action taken.
Why has this decision inspired such strong public sentiments? Brown deals with the intersection of automatism, voluntary intoxication, and the mens rea necessary for criminal liability – areas that challenge the law enough individually. At the same time, it raises questions regarding the protection of women’s rights, as defendants who seek to invoke the automatism defense are overwhelmingly men and the victims disproportionately women. Fundamentally, Brown forces people on both sides of the US-Canadian border to consider not only legal rules and constitutional interpretation, but our normative values about what criminal law should be.
The Concept of Automatism
It is important to distinguish automatism from the more run-of-the-mill intoxication one may find among bar patrons or barristers’ ball attendees. Intoxication only requires “[a] diminished ability to act with full mental and physical capabilities because of alcohol or drug consumption.”[2] While an intoxicated individual retains some ability to consciously control their actions, they may suffer from impaired judgment or have their capabilities reduced in a way that endangers others.[3]
In contrast, automatism involves a far greater loss of control of one’s body. The Supreme Court of Canada cited the common law definition of automatism as “a state of impaired consciousness, rather than unconsciousness, in which an individual, though capable of action, has no voluntary control over that action.”[4] This lack of voluntary control is crucial in distinguishing ordinary intoxication from a state of automatism. While the merely intoxicated individual retains control, albeit impaired, over their actions, an individual in an automatistic state lacks such capacity.
The defendant must lay a proper foundation for the automatism defense, which may involve the use of psychiatric expert witnesses.[5] From there, the trial judge decides whether to allow the defense to go to the jury based on whether a reasonable jury could find, on a balance of probabilities, that the accused’s actions were involuntary.[6]
A Word on Mens Rea
In general, a prosecutor must show that a defendant both committed the proscribed act and did so with the requisite “mens rea” (i.e., a legal term for mental state). For example, a mens rea distinguishes a purposeful killing, which may result in a murder conviction, from an accidental non-negligent killing, which may not even constitute an offense. But there are exceptions to the rule. Certain offenses are strict liability, in which case the prosecutor does not need to show the defendant had a requisite mens rea. As discussed below, strict liability in criminal law is highly controversial and the United States and Canada have taken different approaches to the issue.
Supreme Court of Canada Decides: The R v Brown Decision
The facts of the case are simple enough. Defendant Matthew Brown consumed alcoholic beverages and magic mushrooms at a party.[7] In the hours following, he entered a state of automatism and attacked Janet Hamnett – “a person he did not know and who had done nothing to invite the assault.”[8]
At trial, Brown argued that consumption of the magic mushrooms put him in a state of automatism in which he lacked the requisite mens rea for the crimes: aggravated assault and mischief to property.[9] The Crown responded by invoking section 33.1 of the criminal code – a provision that precluded using the automatism defense when the accused strayed away from the reasonable standard of care while in a state of self-induced intoxication.[10] The Alberta Court of Queen’s Bench struck down section 33.1 and entered an acquittal,[11] but the Alberta Court of Appeal upheld 33.1 and set aside the acquittal in a decision with three separate opinions.[12]
In a unanimous decision, the Supreme Court of Canada held that section 33.1 violated the Charter of Rights and Freedoms and, accordingly, struck it down as unconstitutional. The Court found that, since the marked departure necessary for criminal liability automatically existed at the time of the offense, regardless of whether the automatism was foreseeable, section 33.1 did not contain a sufficient mens rea for a criminal offense.[13] Therefore, this lack of a requirement meant that section 33.1 violated section 7 of the Charter, which has been held to prohibit absolute liability for criminal offenses where imprisonment is available as a penalty.[14]
The Court also found section 33.1 violated section 11(d) of the Charter because it allowed proof of intent to consume a substance to replace the intent to commit the offense at issue.[15] Since there was no inexorable connection between these two intents, substituting one for the other violated the presumption of innocence guaranteed in section 11(d).[16]
Further, the Court held that section 33.1 could not be saved by section 1 of the Charter – a section that allows for “reasonable limits” on Charter rights under limited circumstances.[17] However, the Court stressed that there were ways to hold extremely intoxicated individuals accountable through criminal law.[18] Suggestions included creating a separate offense for consumption of intoxicating substances or adding a negligence requirement based on foreseeability at time of ingestion.[19]
With the decision, Brown was acquitted despite having voluntarily consumed the intoxicating substance that led to his automatism and his attack on Janet Hamnett while in his automatistic state. For all the reasons given by the unanimous Court, there was now a potential loophole in Canadian law whereby individuals who became intoxicated enough to enter a state of automatism could no longer be held criminally responsible. The Court expected society and Parliament to react. And the Court was right.
Society Receives and Reacts: Commentators and Protestors
With so many controversial issues at play, it is no surprise that Brown led to protests and debates. Three law professors writing in the Toronto Star called the decision “a sad day for Canadian women'' and noted a study that found “[a]lmost all of the perpetrators relying on this defence were men and a large majority of the victims were women.” They further took issue with the Court’s decision to treat women’s equality, dignity, and security interests as best considered under section 1 of the Charter, arguing that it “virtually guarantees that women’s rights will never prevail.”
Protests against the decision were held, including one in Kingston, Ontario, where protestors were particularly concerned with Brown’s impact on rape and sexual assault cases. As the Kingstonist reported, “the reaction to the ruling from the students was strong enough that it saw buses organized to pick students up at their schools and deliver them to the rally site.”
Still, the decision has its defenders. Kyla Lee, a Vancouver defense lawyer, found the decision sensible because “[w]hether voluntary actions led to involuntary conduct, we shouldn’t punish people for things that they did not intend to do.” Lee also noted that few people reach the extreme intoxication necessary for the automatism defense, the defense is difficult to establish, and it succeeds rarely. And, contrary to social media claims, Lee said that the automatism defense would not be applicable in impaired driving cases.
The Brown decision was controversial to say the least but solutions were available to mitigate society’s concerns and it was time for the government in Ottawa to take action.
The Political Process Acts: Bill C-28
The Court encouraged Parliament to create a constitutional way to hold automatistic individuals accountable. Parliament did. Just over a month after the decision, the House of Commons unanimously passed Bill C-28 with Senate approval and royal assent followed the next day. The amended section 33.1 denies the automatism defense when “before [the accused was] in a state of extreme intoxication, they departed markedly from the standard of care expected of a reasonable person in the circumstances with respect to the consumption of intoxicating substances.” Section 33.1 also specifies:
For the purposes of determining whether the person departed markedly from the standard of care, the court must consider the objective foreseeability of the risk that the consumption of the intoxicating substances could cause extreme intoxication and lead the person to harm another person. The court must, in making the determination, also consider all relevant circumstances, including anything that the person did to avoid the risk.
In short, the new law requires the Crown to prove a negligence mens rea as to whether the consumption of intoxicating substances could lead to loss of control and harm to others.
While the updated law passed with strong parliamentary support, critics claim the bill does not go far enough and “will prove impossible for the prosecution to implement.”
Brown’s Normative Questions
Beyond the facts of the case, Brown forces us to address long-standing normative questions about criminal law that exist in both Canada and the United States. While Brown itself did not significantly alter the position of strict liability in Canadian criminal law, it did maintain a view of strict liability in stark contrast to the US approach. Allowing an automatism defense despite voluntary intoxication set up another contrast with the US approach, which has been largely hostile to any defense predicated on voluntary intoxication. Therefore, it is worth looking at how the US approaches differ, the rationales behind them, and how we should consider these thorny areas of criminal law.
Strict Liability in the United States
The rejection of the American version of strict liability in Canadian criminal law reflects a concern over punishing an individual lacking a guilty mind – a controversy that exists in American law as well. In Morissette v. United States, the Supreme Court wrote glowingly of the common law’s mens rea requirement as “universal and persistent in mature systems of law.”[20] Given this statement, readers of Morissette may find it ironic that not only are strict liability offenses prevalent in the United States, but such offenses may be punished with lengthy prison sentences.[21] While a presumption against strict liability exists, American courts seek to address strict liability crimes through a multi-factor test rather than finding them unconstitutional per se.[22]
This is not to say Americans are all on board with strict liability. Most modern criminal law scholars view it skeptically[23] and the Model Penal Code rejected its use except for “violations” (i.e., offenses that cannot lead to imprisonment or probation).[24] But this part of the Model Penal Code remains largely unadopted and strict liability still reigns in the United States despite criticisms.[25]
The Strict Liability Question
Even if the Constitution allows it, should the United States continue to apply strict liability or is the Canadian requirement of mens rea for a criminal offense preferrable? There is no obvious answer to this normative, not empirical, question. On the one hand, strict liability seems to fly in the face of retributive principles. How can someone acting unaware of the potential harm they will cause be criminally blameworthy?[26] On the other hand, perhaps utilitarian principles support strong measures to discourage individuals from participating in dangerous activities – such as using intoxicating drugs - when they doubt their ability to not harm society.[27] Fundamentally, the strict liability controversy explores what values we want our criminal law to represent and how we should address cases where general principles may lead to undesirable specific results.
Voluntary Intoxication and Automatism in the United States
Generally, case law in the United States holds that a defendant who voluntarily becomes intoxicated cannot rely on automatism as a defense.[28] In Schlatter v. State, the Indiana Court of Appeals noted that “because Schlatter acted voluntarily in becoming intoxicated, he cannot now claim that his actions which resulted from his intoxication were involuntary, and because he cannot claim that his actions were involuntary, the automatism defense is unavailable to him.”[29] Furthermore, the US Supreme Court has held that it is constitutional for a state to prohibit a jury from considering voluntary intoxication in determining mens rea.[30]
The Voluntarily Intoxicated Automatism Question
At first glance, it may seem obvious that people should be fully responsible for acts done under voluntary intoxication. After all, voluntary is right in the name and there is something intuitive about holding a person responsible for their “voluntary” actions. And this was the traditional common law rule with very limited exceptions, at least for general intent offenses.[31] Furthermore, violent acts committed by intoxicated individuals disproportionately impact women and implicate important societal interests such as preventing sexual assault and intimate partner violence.
But if a statute imposes a mens rea requirement, evidence of intoxication may be highly relevant to whether the defendant possessed the mens rea for the offense.[32] In a dissenting opinion, Justice Sandra Day O’Connor noted “… the fundamental incompatibility of a particular mental-state requirement on the one hand, and the disallowance of consideration of evidence that might defeat establishment of that mental state on the other.”[33] Therefore, recognizing the voluntary intoxication defense “was consistent with the common-law rule that voluntary intoxication did not excuse commission of a crime; rather, an element of the crime, the requisite mental state, was not satisfied and therefore the crime had not been committed.”[34]
Importantly, Brown explicitly rejected a general voluntary intoxication defense for intoxication less extreme than that which results in the person entering a state of automatism.[35] In effect, this would prevent a person who is not extremely intoxicated from using evidence of voluntary intoxication to negate mens rea in a general intent offense.[36] However, the voluntariness of intoxication does not preclude its consideration to negate mens rea in automatism cases.
While proponents of the voluntarily intoxicated automatism defense got a Canadian victory with Brown, this type of defense is on the retreat south of the border.[37] Based on legislative action, voluntary intoxication defenses do not appear politically popular on either side of the border. Perhaps the fact that voluntary intoxication is by definition voluntary leads the public to set aside particularized mens rea issues in favor of the strong societal interest in preventing harm from intoxicated individuals.
Ultimately, this is a difficult question worthy of much further analysis that the length of this article is not equipped to provide. Nonetheless, the effects of Brown should provide insight for comparative legal analysis regarding the voluntary intoxication defense - at least in cases that rise to the level of automatism.
Conclusion
Ever since a group of thirteen colonies threw off the Crown, the United States and Canada have pursued two sets of laws for two different countries. But for all their legal differences, people in both countries share many of the same values when it comes to justice, criminal responsibility, and what the law should strive to achieve.
Brown only applies in Canada and looks unlikely to find footing in the United States anytime soon based on existing American case law and the political process. But the case has received so much attention from our northern neighbor that it forces us to address difficult questions of criminal law, and may provide fertile ground for comparative legal studies going forward.
[1] 2022 SCC 18 (Can.)
[2] Intoxication Definition, Black’s Law Dictionary (11th ed. 2019), available at Westlaw.
[3] E.g., Navarette v. California, 572 U.S. 393, 413 (2014) (Scalia, J. dissenting) (“Whether a drunk driver drives drunkenly, the Court seems to think, is up to him. That is not how I understand the influence of alcohol. I subscribe to the more traditional view that the dangers of intoxicated driving are the intoxicant’s impairing effects on the body - effects that no mere act of the will can resist.”).
[4] Brown, 2022 SCC 18 at para. 2 (citing R. v. Stone, [1999] 2 S.C.R. 290, at para. 156).
[5] R. v. Stone, [1999] 2 S.C.R. 290.
[6] Id.
[7] Brown, 2022 SCC 18 at para. 1.
[8] Id. at para. 1.
[9] Id. at para. 20.
[10] Id. at para. 21.
[11] Id. at para. 22-28.
[12] Id. at para. 29-39.
[13] Id. at para. 83-85.
[14] Id. at para. 90-95 (citing Reference Re BC Motor Vehicle Act [1985] 2 S.C.R. 486 (Can.)). The Supreme Court of Canada has created a two-tiered system where “strict liability” has a due diligence defense while “absolute liability” does not. R v. Sault Ste-Marie (City of) [1978] 2 S.C.R. 1299 (Can.). The lack of a due diligence defense for “absolute liability” makes it more analogous to the US concept of strict liability.
[15] Id. at para. 99-105.
[16] Id.
[17] Id. at para. 110-66.
[18] Id. at para. 136-42.
[19] Id.
[20] Morissette v. United States, 342 U.S. 246, 250 (1952).
[21] E.g., State v. Yanez, 716 A.2d 759 (R.I. 1988) (first degree child molestation as a strict liability offense with minimum 20-year prison sentence). See Joshua Dressler, Understanding Criminal Law 142 (8th ed. 2018).
[22] United States v. United States Gypsum Co., 438 U.S. 422 (1978). Dressler, supra note 19, at 139-40.
[23] Dressler, supra note 19, at 142.
[24] Id. at 144. Model Penal Code § 1.04(5).
[25] See id. at 139-44.
[26] Id. at 142.
[27] Id. at 143.
[28] Id. at 309 (“Where courts have spoken to the issue, the general approach appears to be that, although unconsciousness ordinarily precludes criminal liability, it is not a defense if the condition was itself brought on by voluntary consumption of alcohol or drugs.”)
[29] Schlatter v. State, 891 N.E.2d 1139, 1143 (Ind. Ct. App. 2008).
[30] Montana v. Egelhoff, 518 U.S. 37 (1996).
[31] Dressler, supra note 19, at 301.
[32] Id. at 308.
[33] Egelhoff, 518 U.S. at 69 (dissenting opinion).
[34] Id.
[35] Brown, 2022 SCC 18 at para. 5 (“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.”)
[36] General intent offenses may not explicitly contain a mens rea but courts will typically apply one in deciding the case. In light of the holding in Reference Re BC Motor Vehicle Act that absolute liability for criminal offenses is unconstitutional, Canadian courts would be required to apply a mens rea requirement.
[37] Dressler, supra note 19, at 301 (“… the modern legislative trend is to reduce the scope of any intoxication defense still further.”)