Intoxication, Sexual Assault, and Automatism | Muenz Criminal Law

Intoxication, Sexual Assault, and Automatism


Not infrequently, we hear clients ask some variation of: “we were both drunk. Why am I being charged with sexual assault?”

This is a complicated issue and, unfortunately, there is no easy answer. To discuss this topic, we will have to review the law surrounding sexual assault, consent, and intoxication. Going forward, We will use the legal terms ‘accused’ to refer to those who have been charged with sexual assault and ‘complainant’ to refer to those who reported to the police that they were a victim of sexual assault.


If you’ve been contacted by the police because of a sexual assault allegation, please consider calling a lawyer immediately. At Muenz Criminal Law, we strive to answer phone calls at all hours of the day – including after-hours.

If you’re unsure about talking to the police or are considering providing the police your version of what happened, please exercise your right to a lawyer and call us. We offer free consultations and will help you determine what the best course of action is.

Sexual Assault

The law on sexual assault is anything but straightforward. However, the essential parts of any criminal offence can be summed up as follows: the crown prosecutor has to prove, beyond reasonable doubt, that the accused committed the act (“actus reus”) and had the requisite intention to do so (“mens rea”).

Actus Reus

The actus reus of sexual assault consists of three elements: (1) that the accused made physical contact with the complainant1, (2) that the physical contact was sexual in nature, and (3) that the complainant did not consent to the physical activity. If the complainant consented, then the actus reus is not made out.

As can be seen, there is no need for there to have been any violence or resistance to the physical contact in question. It is enough for the complainant to have subjectively not consented to the physical touching.

Mens Rea

The mens rea of sexual assault requires two things: (1) that the accused had the basic intention to touch the complainant and (2) that the accused was aware of the absence of consent by the complainant.

However, the prosecution can also assert that the accused was wilfully or recklessly blind to the fact that the complainant did not consent. So, where an accused claims that they did not know that the complainant did not consent, the accused will also have to show that their belief that the complainant consented was reasonable.

This is often referred to as the defence of having an honest but mistaken belief in consent.


So where does intoxication come into play with a sexual assault case?

That is dependent on each case but intoxication can play a role in every aspect of a sexual assault case.

First, a complainant may not remember whether they consented at the time of the sexual activity because of a “black out”. While this may benefit an accused and their case, it remains open to the prosecutor to argue that circumstantial evidence shows the complainant did not consent at the time of the sexual activity.

Second, a prosecutor may argue that the complainant was so intoxicated that they could not consent to the sexual activity (even if they wanted to). Typically, extreme intoxication is required for someone to be considered unable to consent but it is not uncommon for prosecutors to argue that a complainant was too intoxicated to consent. A prosecutor may even rely on the complainant’s “black outs” as evidence of their extreme intoxication.

Third, an accused may not remember what happened due to their intoxication and their own “black outs”. This makes it difficult for accused to testify as to what actually happened and why they had a genuine belief that the complainant consented to the sexual activity.

Fourth, section 273.2 of the Criminal Code specifically prohibits accused from relying on their own voluntary intoxication as a basis for having a genuine belief that a complainant consented. In other words, an accused cannot claim that, because they were drunk, they did not realize that the complainant did not consent.

Self-Induced Intoxication akin to Automatism

On May 13, 2022, the Supreme Court of Canada rendered a new decision titled R v Brown, 2022 SCC 18. It has been subject to broad publicity because of the implications of assault and sexual assault cases.

In restoring the acquittal for the appellant in R v Brown, the Supreme Court of Canada declared section 33.1 of the Criminal Code unconstitutional. As a result, it no longer has any force or effect on trials in Canada.

Section 33.1 prohibited accused from relying on self-induced intoxication as a defence to crimes such as sexual assault and aggravated assault. With this section no longer in effect, the accused can now argue that they did not have the intent to commit the crime alleged as a result of their self-induced intoxication.

It is important to know, however, that for this defence to work, the level of intoxication must be so severely high that it was akin to automatism. It is not enough to be merely drunk and it is unclear if alcohol alone can lead to this level of intoxication.

Automatism is defined as a psychological state where actions are performed without conscious thought or intention. In other words, the actions are committed by that person involuntarily. It is for this reason that, where a person experiences automatism by way of intoxication, they have a legal defence.


What anyone can gleam from the way intoxication is treated at law is that it can unfairly prejudice the accused.

A prosecutor can rely on intoxication to suggest that the complainant couldn’t consent and use it as an excuse for the complainant’s lack of memory. However, a defence lawyer cannot excuse the behaviour of their client, the accused, by way of their intoxication and, if an accused does not remember the incident due to intoxication, a court is more likely to believe a complainant’s version of events.

So why does the prosecution and the complainant have the benefit of relying on intoxication while it is a detriment to the accused’s defence? Fundamentally, it is because of presumptions in our justice system regarding the respective roles of the accused and the complainant. There is the presumption that the complainant was a passive participant in the alleged sexual assault while it is presumed that the accused initiated the sexual activity and was the active participant in the sexual assault.

A knowledgeable and skilled criminal defence lawyer will argue in court that these presumptions cannot cloud our judgment about what occurred during an alleged incident of sexual assault. If you or someone you know has been charged with sexual assault, give us a call at 403-543-6666 to learn how we can help.

1 Technically, the actus reus is also made out if the accused threatened physical contact.

Author: Thomas Scholten