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What the media got wrong about the Sullivan decision & what workplace investigators need to know

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Recently the Ontario Court of Appeal released its decision in R. v. Sullivan, a case involving the automatism defence. For those who don’t know, this defence can potentially be raised when an individual enters a state of impaired consciousness in which they are capable of acting but have no voluntary control over those actions¹. Through amendments to the Criminal Code of Canada in the mid-90s, the defence of automatism cannot be used for violent offences when the automatism is brought on by self-induced intoxication.

The Criminal Code amendments were brought in for a good reason. In 1989 a man named Henri Daviault sexually assaulted a wheelchair-bound woman after drinking heavily. The issue of whether he could use his intoxication as part of his defence went to the Supreme Court of Canada, where it was found that he could. The public’s response to the ruling was extremely negative, and the federal government quickly amended the Criminal Code to bar a defendant from arguing lack of intent in cases of self-induced intoxication.

In the recent Sullivan decision the Court of Appeal considered two cases (the first involving the defendant Sullivan and the second involving the defendant Chan) in which the defendants ingested substances (the prescription medication Wellbutrin and “magic mushrooms,” respectively) prior to committing violent offences against family members. In both cases, the defendants contended that they were in states of automatism at the time of the crimes; they were prevented from using the defence, however, since the automatism and resulting lack of intent were caused by substances they ingested willingly. The Court of Appeal found that it was unconstitutional to prevent these defendants from using the defence, as the result was to remove the requirement that the Crown prove the element of voluntariness.

As someone who does not practice criminal or constitutional law, the Sullivan decision is not the kind of case that would normally be on my radar. I took notice of it because of the media coverage that swiftly followed the decision. The headlines of multiple media sources asserted that the Court of Appeal had cleared the way for self-induced intoxication to be a defence to sexual assault. In the days since the decision’s release, petitions have sprung up demanding that the decision be appealed.

As a workplace investigator I have investigated many cases involving allegations of sexual assault. In most cases the alleged incidents took place on University campuses and most involve the consumption of alcohol by one or both parties. Accordingly, I was surprised to see these headlines and – before reading the decision – I wondered if the ruling might impact the way we conduct investigations into sexual assault and harassment allegations in the civil context.

As you might be able to guess from the synopsis of Sullivan above, this decision is likely not going to change the way we conduct these investigations because the media headlines are – if not completely wrong – at the very least misleading. The Court of Appeal did not clear the way for alcohol consumption to remove all responsibility for violent actions including sexual assault. In fact, the Sullivan and Chan cases had nothing to do with alcohol or sexual assault. The Court specifically noted in its decision that, based on what we currently know about alcohol intoxication, even large amounts of alcohol are not capable of inducing an automatism state that would equal a defence to a violent crime.

So as workplace investigators, what do we need to know about Sullivan, the automatism defense, and conducting an investigation in situations where intoxication is involved?

1)  Sullivan does not change how we view drunkenness as a defence to sexual assault.

While reading the news coverage of Sullivan, one of my biggest concerns was headlines proclaiming that excessive alcohol consumption can now be used to excuse sexual assault. As noted above, this is not what the Court of Appeal said; in fact, the Court was of the opinion that the current science regarding excessive alcohol consumption does not support the idea that automatism can be caused by it.

2) Complainants in sexual assault cases might believe that drunkenness is an excuse.

Because of the media coverage and discussions on social media about the Sullivan case, there is a perception on the part of the general public that those who commit sexual assault can now “get away with it” if they have a few drinks beforehand. It is important for workplace investigators to be aware that this perception exists. Complainants in sexual assault cases are often very reluctant to come forward with their complaints and to speak to investigators for a multitude of reasons (including fear of not being believed and fear of judgment for their own actions) and now we can add the fact that they might feel there is no point in pursuing their complaint if the perpetrator was intoxicated at the time.

3) Automatism is very rare.

As this is a criminal defense it is not something that workplace investigators will have to consider per se, but it’s conceivable that any of us could have to investigate a situation where an individual says that they do not remember their violent or harassing conduct due to their level of intoxication at the time. It is important to distinguish automatism from having lowered inhibitions or a spotty memory due to the consumption of alcohol or drugs.

Sexual assault cases involving alcohol will always be some of the most complex investigations for workplace investigators. However, we can take comfort in the fact that Sullivan likely has not changed anything about the way that we do our work. Every sexual assault investigation needs to be decided on its own merits, and a respondent having consumed an excess of alcohol is not an automatic excuse for their actions, despite what the headlines might say.

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1 R. v. Stone1999 CanLII 688 (SCC)