WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
DATE: 2024 03 13 COURT FILE No.: Central West Region 001591
BETWEEN:
HIS MAJESTY THE KING
— AND —
MITCHELL MISKIE
Before: Justice L. Daviau
Heard on: January 15, 16, 17, 18, 22 and 23, 2024 Reasons for Judgment released on: March 13, 2024
Counsel: Michael Morris, for the Crown Margaret Bojanowska, counsel for the accused Mitchell Miskie
Daviau J.:
Overview
[1] Mitchell Miskie is charged with sexually assaulting R.H.
[2] R.H. and Mr. Miskie met in college. Leading up to January 25, 2020, the two of them, along with their friends Ryan Potter, Philip Usajewicz, Stewart Auger and Kyra Lansing got together every year to commemorate the loss of a friend. Mr. Miskie and R.H. did not otherwise socialize. The two have never had a romantic relationship.
[3] During one of their get togethers, in the early morning hours of January 25, 2020, while the group was sleeping over at Mr. Usajewicz’ condo, Mr. Miskie sexually assaulted R.H.
[4] Mr. Miskie does not deny the assault on R.H. rather, he relies on the defence of extreme intoxication in seeking an acquittal from the Court.
The Facts
[5] R.H.’s evidence was largely undisputed. She was the last of the group to arrive at Mr. Usajewicz’ condo on Friday January 24, 2020. The group continued to drink and played drinking games before attending a bar to play pool. While at the bar, the group continued to drink. R.H. believes they returned to the condo around midnight. Shortly after they arrived back, they decided to watch a movie. However, R.H. was tired and despite having a coffee to try to perk herself up, about 30 minutes after arriving at the condo, she went to bed on her air mattress that she had set up on the living room floor.
[6] While she went to bed alone, at some point in the evening she became aware that someone else was on the air mattress. This did not concern her as the group were friends. About the time she became aware of someone beside her on the mattress, she could sense light on, likely from the television and believed she heard Mr. Auger and Mr. Potter talking. She fell back to sleep.
[7] She can next recall having what she believed to be a sex dream and an awareness that she was aroused. When she awoke, she could feel someone behind her. She was laying on her left side and she could feel his genitals on her bare skin. She believed the persons penis to be partially erect. The person who she quickly realized was Mr. Miskie, said something like “are you still sleeping” or “are you actually asleep” then asked her “do you like that” or “is that good”. When describing his speech, R.H. noted that he used a low tone, whispering in her ear and that it was not slurred.
[8] She then described that Mr. Miskie’s hand went to her mouth and touched her lips, he then moved his hand to her naked breast (her shirt had been pulled up) then he moved his hand to her vagina, where he put his finger inside of her vagina. Her shorts and underwear had been pulled down to just above her knees.
[9] R.H. jumped up and out of bed, turned to Mr. Miskie and yelled “what the fuck.” Mr. Miskie did not respond. She then went to the washroom to compose herself.
[10] Realizing she needed her phone to call for help, she returned to her air mattress to retrieve it. She does not recall if Mr. Miskie remained. She fled the condo, went into the stairwell and phoned her sister. She then went into the lobby where she phoned Ms. Lansing who was asleep in the condo. Very shortly after Ms. Lansing joined R.H. in the lobby. Once with her sister, R.H. phoned police and reported the sexual assault. She went to the hospital where a sexual assault kit was completed. [^1] She then went to the police station where she provided a videotaped statement.
[11] In terms of her own intoxication, R.H. told the court she was drunk, but while she had a few fuzzy spots, she could still remember everything about the sexual assault. In terms of the group, she believed Mr. Miskie and Mr. Auger were the most intoxicated, but that no one stood out as being far more intoxicated than the other. She believed both were also smoking weed and trying to stay up longer to drink and keep the party going.
[12] Ms. Lansing and surveillance from the lobby of the condo corroborate much of R.H.’s account. While much was made in cross-examination about the fact that R.H. did not disclose to Ms. Lansing, her sister or the 911 operator the extent of what occurred on the mattress with Mr. Miskie, I accept R.H.’s explanation that she didn’t want to tell her friend or sister the extent of the assault and that she preferred to tell the police the entire account as eminently reasonable. I find her explanation particularly compelling given that she attended at the police station the same day to provide her account.
[13] I further reject the suggestion that she was unreliable due to her alcohol consumption. I find that she gave her evidence carefully so not to embellish or guess at what might have occurred.
[14] I have no trouble accepting R.H.’s evidence including that Mr. Miskie whispered coherently into her ear and that he placed his finger into her vagina before she got up from the mattress, something at trial R.H. told the court she was 100% sure of.
[15] Everyone who stayed at the condo on January 24 and 25, 2020 gave evidence at trial. Each corroborated that the group was drinking and while there were varying degrees of intoxication, no one noted any concerning behaviour from Mr. Miskie.
[16] Mr. Potter told police that he was awake and on the couch when R.H. went to bed. About 20 to 30 minutes later, Mr. Miskie got up, went into the room beside the living room and returned with a blanket. He then laid down on the air mattress, opposite R.H. R.H. appeared to be asleep. About 30 minutes later, Mr. Potter fell asleep on the couch. He did not hear or see anything again until he was awoken by Mr. Usajewicz early the next morning. By that time R.H. was gone.
[17] Mr. Potter described himself on the evening of January 24, 2020, as drunk but still able to remember what occurred. He described Ms. Lansing and Mr. Usajewicz as the least drunk, with him, Mr. Miskie and Mr. Auger being the most drunk. However, nothing stood out to him about Mr. Miskie’s ability to speak and he confirmed that there was no point in the evening when he was not able to speak with Mr. Miskie. Even observing him as he went to lay on the mattress, Mr. Potter told the court that there was nothing about the way he was walking, or in how he laid down that was unusual. He told the court that Mr. Miskie was not so intoxicated that he was falling or anything like that.
[18] Mr. Potter watched as police arrested Mr. Miskie. He described Mr. Miskie as appearing confused, but when asked, could not make any comment about the level of his intoxication.
[19] Mr. Usajewicz, placed Ms. Lansing and R.H. as the least intoxicated, followed by himself, then Mr. Potter, then Mr. Miskie and Mr. Auger at about a tie. After attending the pool hall, he believed everyone returned to his condo between 12:00 a.m. and 1:00 a.m. He told the court they watched a movie and that he went to bed around 2:00 a.m.
[20] While everyone was drinking, he believed Mr. Miskie and Mr. Auger to be the most intoxicated as they had started drinking at the condo before everyone. He understood that Mr. Miskie was also smoking marijuana. However, there was nothing out of the ordinary in respect of either mans behaviour. Perhaps Mr. Miskie exhibited some slurring and a little stumbling, but he described it as nothing major. He testified that Mr. Miskie could still make coherent sentences, although he could tell he was drinking.
[21] After Mr. Usajewicz went to bed, he was not aware of anything having occurred until Ms. Lansing woke him up just before 5:00 a.m. At that point they looked for Mr. Miskie and found him asleep on the floor of his office, just off the main living area. They did not attempt to wake him.
[22] When police arrived Mr. Usajewicz observed police walk Mr. Miskie out of the condo. He denied that they had to drag him from the condo. He described Mr. Miskie as looking worried and surprised but wouldn’t say at that time he was intoxicated.
[23] After Mr. Miskie was arrested Mr. Usajewicz found what he believed to be a vile containing cocaine amongst Mr. Miskie’s things.
[24] Mr. Auger told the court that everyone was drinking, most were fairly intoxicated, with Mr. Usajewicz being the least intoxicated. He would describe his level of intoxication to be like Mr. Miskie. He would characterize the two of them as being more intoxicated than the rest of the group. He described himself as being very intoxicated and that he either blacked out or fell asleep on the couch in the living room.
[25] Over the course of the evening on Friday Mr. Auger was aware Mr. Miskie was smoking marijuana and doing cocaine from a little black vile he carried. He saw him do cocaine outside of Mr. Usajewicz’ condo but also in the washroom at the bar.
[26] Ms. Lansing arrived at Mr. Usajewicz condo on the Friday evening. While she was drinking throughout the night, when she went to bed about 1:30 a.m. she would describe her level of intoxication as minimal. She described Mr. Auger and Mr. Miskie as the most intoxicated out of the group, and herself as the least intoxicated.
[27] When she went to bed, R.H. appeared to be sleeping on her mattress. Mr. Miskie and Mr. Auger had gone downstairs for a cigarette while Mr. Potter was on the love seat.
[28] At 4:37 a.m. she received a call from R.H. who was quite distressed. She was crying, sobbing, out of breath and appeared frantic. She got up from her bed and went downstairs to the lobby where R.H. told her about what had happened.
[29] She too watched as police arrested Mr. Miskie form inside of the condo. She described that while officers carried Mr. Miskie out, he appeared quite distressed and expressed an unawareness of what was going on. She did not recall what he said. She attributed this to Mr. Miskie just having been woken up by police.
[30] For the defence, Megan Brady, Mr. Miskie’s long time girlfriend testified about two prior incidents involving Mr. Miskie.
[31] The first, occurred while the couple was in the Dominican Republic with friends. Mr. Miskie had spent the day into the evening drinking alcohol. After he had gone to bed, he woke up from sleep and walked to the front door. Ms. Brady who was awoken by Mr. Miskie’s movements had to get up and pull him back into the room, before closing and relocking the door. She then turned to find Mr. Miskie urinating in front of the in-room mini fridge. She yelled at Mr. Miskie to stop and made him clean some of the urine up before he went back to bed. She thinks he used a towel or a t-shirt, and while he attempted to clear up the urine, he did a very poor job. She then had to lead him back to bed. During the event, she described him as unresponsive but could not recall if he responded when she yelled at him. The next morning when she told him what had happened, he was shocked and appeared to her to not remember anything that had occurred.
[32] The second incident described by Ms. Brady occurred at Mr. Miskie’s home. On that day, during a party hosted by his parents, Mr. Miskie consumed large quantities of alcohol and smoked marijuana. At some point, Ms. Brady made the decision to put him to bed and continued to check on him during the night. At one point, she observed Mr. Miskie get out of bed, she assumed it was so he could use the bathroom, but rather than go into the bathroom, Mr. Miskie turned and urinated on the top of the landing at the stairs.
[33] Again, Ms. Brady yelled at him, but does not recall if he responded. She described him as being non-responsive, glassy eyed, confused, still and just standing there. She brought him back to bed. She does not recall if any conversation was exchanged. When she told him about his behaviour the next day, he was shocked and did not remember anything.
[34] Doris Miskie, Mr. Miskie’s mother also testified about the event that occurred in her home. She had been in the kitchen playing cards when she heard Mr. Miskie on the landing of the stairs. She got up and yelled up at him, ‘what are you doing’. There was no response whatsoever from Mr. Miskie. She described him as being in a zombie state and continued to urinate. She did not deal with the matter any further and believed that Ms. Brady cleaned up the urine. Mr. Miskie appeared shocked when she told him what occurred.
[35] Several police officers testified for both the Crown and the defence. Constable Co attended the condo at 6:41 a.m., woke up Mr. Miskie and advised him he was under arrest for sexual assault. Mr. Miskie appeared dazed and confused, but answered the officer’s questions, did not appear to have slurred speech and he did not note any indicia of impairment. As he escorted Mr. Miskie out of the condo, he did not notice any swaying or falling, and he did not have to hold him up.
[36] Constable Babansee arrived at the condo at 6:28 a.m. He was there when Mr. Miskie was arrested and then escorted him out to the waiting scout car. The only thing he recalls of that time is that Mr. Miskie appeared groggy, but he could not say if that was due to impairment or the fact that he had just been woken up. He does not recall if Mr. Miskie had trouble walking or smelling any odour of alcohol.
[37] Mr. Runciman, a fireman, formally with Peel Police, was acting as the cells officer when Mr. Miskie arrived at the station at 7:14 a.m. He recalled Mr. Miskie being emotional. He also recalled he had bloodshot watery eyes. He acknowledged that it was possible that Mr. Miskie exhibited indicia of impairment, but that he did not record that into his notes.
[38] Officer Scamurra entered the condo at 6:20 a.m., where he observed Mr. Miskie asleep on the floor of the office. He along with others attended and woke him up. He observed that Mr. Miskie was confused as to why they were there. He is unsure if Mr. Miskie’s confusion was the result of impairment or the situation in general. He also noted Mr. Miskie had red blood shot yes, was unsteady on his feet and he could smell alcohol on him. Mr. Miskie was responsive to his questions. He denied dragging Mr. Miskie from the apartment.
[39] Mr. Miskie testified in his defence. At the time of trial, he was 27 years old and has no criminal record. He is a law clerk with aspirations to become a lawyer. He testified that he does not recall the events leading up to and the assault on R.H.
[40] He and Mr. Auger were first to arrive at Mr. Usajewicz condo on the Thursday night. While Mr. Usajewicz went to bed because he had to work the next day, he and Mr. Auger stayed up drinking alcohol. On the Thursday he drank 4 to 5 beers from the 6 pack of beer that he had brought with him. It is also possible he consumed marijuana during that time. Along with the beer, Mr. Miskie had brought about 3.5 grams of marijuana and 1 gram of cocaine with him that weekend.
[41] On Friday morning, Mr. Miskie woke up feeling hung over and groggy from the night before. He and Mr. Auger went across the street to get a coffee, 20 minutes later they returned to the condo and Mr. Miskie opened and drank a beer. When Mr. Usajewicz returned around lunch time with wings, Mr. Miskie ate and consumed another 1-2 beers. After lunch Mr. Usajewicz retired to take a nap and Mr. Miskie and Mr. Auger left to get more food from Subway. They returned to the condo and watched tv while Mr. Miskie continued to drink 1 to 3 more beers and smoked marijuana.
[42] After Mr. Usajewicz got up around 3:00 p.m. the men went to get more beer. Mr. Miskie purchased a 12 pack. Upon their return to the condo, Mr. Miskie consumed another 1-2 beers while setting up beer pong. When Mr. Potter arrived about 6:00 p.m., he grabbed them both another beer. At some point the girls, R.H. and Ms. Lansing arrived. The group continued to consume alcohol and play drinking games.
[43] While consuming alcohol, throughout the day, Mr. Miskie continued to smoke marijuana. Then, just before they left for the pool hall, Mr. Miskie did cocaine in Mr. Usajewicz’ bathroom. He believes he used a fair amount of cocaine but can’t be sure of how much.
[44] When they arrived at the pool hall Mr. Miskie discovered half a Xanax pill in his coat pocket. He testified that he was excited about finding it as he believed it would make the night more fun. He consumed the half pill. While he had the pill in his pocket and had used Xanax in the past as a party stimulant, on January 24, 2020, he told the court he used it infrequently.
[45] While at the pool hall, Mr. Miskie recalls that he consumed more cocaine in the washroom. He also shared at least two pitchers of beer with Mr. Auger, along with rum and coke, although he is not sure how many he consumed.
[46] He told the court that about the time they left the pool hall, his memory starts to get fuzzy. While he has some recollection of taking an Uber home, and some recollection of getting back, he does not really remember being in the elevator. He does recall getting another beer from the fridge upon his return.
[47] Of his sobriety, after returning from the bar, he described himself as not walking too well, having slurred speech and as being quite intoxicated. He recalls having to lean against the wall both at the bar and when back at the condo.
[48] While back at the condo, Mr. Miskie told the court his memories are all jumbled together. He recalls having just one beer, but believed he continued to smoke marijuana. He has some recollection of watching television while sitting on the end of R.H.’s air mattress, as well as sleeping on the floor, but he does not remember where.
[49] He testified that he has absolutely no memory of laying on the air mattress next to R.H. and no memory of any sexual activity with her. Mr. Miskie told the court he has and has never had any sexual interest in R.H.
[50] The next thing he remembered is being ‘dragged’ out of the condo by police and asking Mr. Usajewicz who he saw standing there ‘what was going on’ or ‘what was happening’. At this point he was hung over, his body was sore, his head hurt, he was dehydrated and needed time to figure out what was going on. After his arrest he was scared, in shock and does not remember the booking process at the station.
[51] While at the station he began to feel very sick, very nauseous, he was freezing, had the jitters and cold sweats. He vomited twice. He declined medical attention.
[52] When asked about his history, he told the court he was aware of two occasions where after consuming significant amounts of alcohol and smoking marijuana, he was told by family and his girlfriend that he got up and urinated inappropriately, without any memory of having done so. He was surprised and had to be convinced later that both events had occurred.
[53] Of this incident, Mr. Miskie was sincere when he told the court he was ashamed of his actions and feels terrible for R.H. I also accept his account of having consumed somewhere between 10 to 15 beer, 3 to 4 pints of beer, at least 2 rum and cokes, a large quantity of marijuana, cocaine and half a Xanax from the time of his arrival at Mr. Usajewicz’ condo on Thursday February 23, 2020, to when he went to bed in the early morning hours on February 25, 2020. Except for the Xanax, much of his consumption is corroborated in varying degrees by his friends.
[54] However, I find that Mr. Miskie embellished the impact that the drugs and alcohol had on him. For example, no one at the gathering noticed Mr. Miskie’s behaviour to be out of the ordinary or that it stood out in any manner. At most he is describe as having mild slurring of speech and perhaps a little stumbling but “nothing major.” I further note that of the group, at least two of the parties, Ms. Lansing and Mr. Usajewicz were not significantly inebriated. They do not note any particularly unusual behaviour in Mr. Miskie.
[55] In contrast, Mr. Miskie’s description of his own state by the end of the night included that he was not walking well, was slurring his speech and had to lean to maintain his balance.
[56] Further, Mr. Miskie’s description of his interactions with police, I also find to be self-serving. Mr. Miskie after his being woken up and arrested, described having to be dragged out of the condo by police. While officers gave somewhat varying accounts of Mr. Miskie’s sobriety upon his arrest two hours after the incident occurred, none of them described having to ‘drag’ Mr. Miskie out.
[57] I have also watched the videos at Exhibit 5. While Mr. Miskie does appear to be a bit out of sorts, perhaps even in shock, when he initially arrives at the police station, I do not note any significant signs of impairment or indications that Mr. Miskie is unaware of what is going on. His behaviour on the videos is entirely consistent with someone who has just been woken up after a night of drinking and doing illicit drugs and who has just been advised that they have been arrested for sexual assault.
[58] None the less, I am convinced that Mr. Miskie was significant inebriated when he went to bed in the early morning hours of February 25, 2020. I also accept that he is being truthful that he has no memory of what occurred after going to bed. However, that is not dispositive of the issue. The issue is whether Mr. Miskie was extremely intoxicated to the extent that he was rendered an automaton and therefore had no control over his actions when he sexually assaulted R.H.
[59] To assist in addressing this issue, the defence called Dr. Gary Chaimowitz. [^2] On consent, Dr. Chaimowitz was qualified as an expert in forensic psychiatry including issues of criminal responsibility and the use of alcohol and medications and illicit substances as it pertains to the practice of psychiatry.
[60] Dr. Chaimowitz considered a number of possible explanations for what occurred, including:
(1) Mr. Miskie was disinhibited by his consumption of drugs and alcohol and engaged with R.H.;
(2) That this was a deliberate attack on R.H. and Mr. Miskie is feigning intoxication to avoid responsibility;
(3) That the incident was a courtship attempt misguided by alcohol; or
(4) That the alcohol and drugs he consumed that night were sufficient to cause a blackout and while blacked out a disconnection or unawareness of what he was doing occurred and the resulting behaviours were automatic.
[61] In forming the opinion that Mr. Miskie suffered a blackout which resulted in his acting in an automatic state without the ability to form either a specific or general intent, he considered:
(1) The alcohol and drugs Mr. Miskie consumed on the day in question;
(2) That Mr. Miskie is a man with a prosocial history;
(3) That he appeared to be puzzled, quite alarmed and concerned about what he was accused of doing, including with the police immediately after; and
(4) His history of blackouts.
[62] Dr. Chaimowitz described a blackout as the failure to lay down memory. During a blackout he described that there is a disconnect between behaviours and internal self, so that the accused would have no idea what they are doing and no memory of it. Other situations where automatic behaviours can occur is when there is a head injury, sleep walking and seizures.
[63] In cross, he explained that 50% of college student who drink excessively experience blackouts. However, most of them do not engage in this type of behaviour. He continued that there is some information to suggest that people who engaged in and had alcohol blackouts, also engaged in inappropriate behaviour, but that did not appear to be the case with Mr. Miskie, because his previous two blackouts did not appear to be associated with risk to others.
[64] In relation to Mr. Miskie, Dr. Chaimowitz opined that the combinations of alcohol accelerated by drugs including cocaine and Xanax can cause this disconnection to occur.
[65] Dr. Chaimowitz further considered that Mr. Miskie drank more on January 24th into January 25th then he normally did. This combined with the drugs, including the marijuana, which he opined appears to be stronger today then ever before, can cause this lack of awareness. He further told the court that the cocaine would have acted as a stimulant, amplifying the effects of either drug alone. In respect of the Xanax, while generally benzodiazepine is used to treat anxiety and aid in sleep, given the amount consumed Dr. Chaimowitz opened that it was unlikely to have been a significant factor in his behaviour.
[66] Regarding R.H.’s description of Mr. Miskie’s whispering to her during the event, Dr. Chaimowitz explained that there is some suggestion in the cases that while the behaviour is a little bit sorted, the automaton can engage in a conversation. Having considered the fact of Mr. Miskie’s utterances in this case, while it may suggest some conscious decision to engage in the behaviour, it did not dissuade him from his final opinion on the matter.
[67] Dr. Chaimowitz opined that the two prior incidents where Mr. Miskie urinated inappropriately were blackouts themselves and that this increases the likelihood that that he is susceptible to blackouts.
[68] Dr. Chaimowitz further considered Mr. Miskie’s pro social behaviour, including his long-term monogamous relationship as reinforcing is opinion that Mr. Miskie suffered a blackout and was in a state of automatism when he assaulted R.H.
[69] Ultimately, Dr. Chaimowitz concluded:
Mr. Miskie was intoxicated. He acted in a way that was atypical for him. Um, he had all the other indicia of – of extreme intoxication and blackout. Sexual – having sex with somebody they don’t know is not uncommon. With college with blackouts where I think up to 25% in some studies. This is – this is my view what – what happened. Um, so, um, so I disagree with you um, and I think the – the information suggests that that um, my – my full narration is the most likely one.
Analysis
[70] Despite Dr. Chaimowitz’ evidence, I am not satisfied on a balance of probabilities that the defence of extreme intoxication akin to automatism has been made out.
The Law
[71] Prior to the enactment of section 33.1 of the Criminal Code, the common law rule in Leary v. The Queen, [1978] 1 S.C.R. 29 bared self-induced intoxication as a defence for general intent offences. The Supreme Court of Canada in R. v. Daviault, [1994] 3 S.C.R. 63 found the rule in Leary to be unconstitutional. The majority of the court noted that “there is no pressing and substantial purpose in preventing access to the “rare and limited” defence of automatism arising from self-induced intoxication…” R. v. Daviault, at p. 103.
[72] The notion that extreme intoxication could provide a defence for sexual assault, a general intent offence, created public outcry. Recognizing the concerns expressed by the public and the harm caused by alcohol, particularly in respect of violence against disadvantaged groups including women and children, in 1995 Parliament responded and enacted section 33.1 of the Criminal Code. Section 33.1 barred extreme intoxication as a defence for general intent offences.
[73] Perhaps a testament to the rarity of the defence, it was not until 2022 that the Supreme Court of Canada considered the constitutionality of section 33.1 of the Criminal Code in R. v. Brown 2022 SCC 18 (Also see R. v. Sullivan, 2022 SCC 19). In Brown, the Supreme Court found section 33.1 of the Criminal Code to be unconstitutional, once again lifting the bar on the defence of extreme intoxication for general intent offences.
[74] In doing so the Supreme Court reiterated that intoxication is never a defence to general intent offences, like sexual assault. Rather, the defence at issue here is extreme self-induced intoxication akin to automatism. In referring to three cases, Brown, Sullivan and Chan the Court wrote:
These are not drunkenness cases. The accused in each of these appeals consumed drugs which, they argued, taken alone or in combination with alcohol, provoked psychotic, delusional and involuntary conduct, which are reactions not generally associated with drunkenness. As I note below, there is good reason to believe Parliament understood that alcohol alone is unlikely to bring about the delusional state akin to automatism it sought to regulate in enacting s. 33.1 of the Criminal Code, R.S.C. 1985, c. C-46. As Lauwers J.A. wrote in R. v. Sullivan, 2020 ONCA 333, 151 O.R. (3d) 353"it is not clear that extreme alcohol intoxication causes non-mental disorder automatism as a matter of basic science" (para. 288). In any event, these reasons say nothing about criminal liability for violent conduct produced by alcohol alone short of the psychotic state akin to automatism experienced by Mr. Brown and spoken to by the trial judge. I specifically leave intact the common law rule that drunkenness, absent clear scientific evidence of automatism, is not a defence to general intent crimes, including crimes of violence such as sexual assault.
It thus bears emphasizing that Mr. Brown was not simply drunk or high. 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. [Emphasis Added].
R. v. Brown at paragraphs 4 and 5.
[75] To be sure, Justice Kasirer for the Court went onto reiterate:
It bears recalling, then, that most degrees of intoxication do not provide a defence to crimes of general intent like the offence of aggravated assault from which Mr. Brown was convicted on appeal. Only the highest form of intoxication -- that which results in a person losing voluntary control of their actions -- is at issue here: extreme intoxication akin to automatism as a defence to violent crimes of general intent and, then again only intoxication that is self-induced.
…It is certainly plain that intoxicated violence is a serious social problem. Whatever proportion of this phenomenon relates to involuntary conduct, it is notable that extreme intoxication akin to automatism is an exigent defence requiring the accused to show that their consciousness was so impaired as to deprive them of all willed control over their actions. This is not the same as simply waking up with no memory of committing a crime. A failure to remember does not prove that an individual was acting involuntarily. [Emphasis Added]
[76] It is worthy of note that in all three cases before the Supreme Court of Canada, the accused were described as having suffered some sort of psychotic break because of their drug and/or alcohol and drug consumption.
[77] Mr. Brown was in a state of delirium. He had consumed magic mushrooms and it was clear he was suffering hallucinations while attacking a stranger and screaming incoherently at the top of his lungs. He then fled to another home and was located there naked, whispering, and confused. In that case the evidence adduced included that psilocybin was the “clear causative factor” for his delirium. (See R. v. Brown at para 20).
[78] When Mr. Sullivan attacked his mother, he was in a drug induced psychosis, during which he believed an alien was in the living room. Several neighbours saw Mr. Sullivan acting erratically outside of the building after the attack. When police arrived, he was talking non-sense. He was taken to hospital where he had multiple seizures. It took a few days for the psychotic episode to resolve itself. A forensic psychiatrist gave evidence that Mr. Sullivan was likely experiencing a bupropion-induced psychosis at the time of the attack on his mother. (R. v. Sullivan, 2022 SCC 19 at paras 9, 10 and 11)
[79] Mr. Chan, having ingested magic mushrooms was described as acting erratic. Frightened he woke up his mother, before unexpectedly leaving her residence, and breaking into his father’s residence despite otherwise having access. When he confronted his father, the evidence at trial was that he did not appear to recognize his father, he shouted about God and that this father was Satan. Police described Mr. Chan as having ‘super strength’ at one point during his arrest. (R. v. Sullivan, 2022 SCC 19 at paras 12, 13 and 14)
[80] While I am not suggesting that an episode short of what is described in these three cases will never engage the defence of extreme intoxication, what I do find is that the Supreme Court has provided clear language that this rare and limited defence will only be engaged in instances where the intoxication is so extreme that the resulting behaviors are clearly involuntary. Dr. Chaimowitz’ expert opinion that Mr. Miskie suffered a black out that resulted in automatic behaviour, accepting that is what in fact occurred, must be assessed against that backdrop.
[81] I also note that while the defence is required to call an expert to raise this defence, the weight accorded to that evidence will vary from case to case. There is a difference between cases where the expert evidence has demonstrated a “documented history of automatistic-like dissociative states” and cases where the expert confirms that the defence is plausible. R. v. Stone, [1999] 2 S.C.R. 290 at paragraph 186.
[82] Here, I find that the expert evidence has not established a history of dissociative states. Further, having considered all the evidence at trial including the expert evidence, I am not satisfied that the defence has me their burden. See R. v Stone at paragraphs 186 to 192.
[83] Frist, while Dr. Chaimowitz used the term ‘blackout’ to describe what happened to Mr. Miskie, I query whether a blackout, or the failure to lay down memory, will ever be sufficient on its own to successfully raise the defence of extreme intoxication. The Supreme Court in Brown at paragraph 50 referred to above, made it clear that the failure to remember does not prove involuntariness. Dr. Chaimowitz’ evidence with respect to the number of college students who experience blackouts after consuming intoxicants and the number of those who engage in intercourse at the time, is illustrative of the need to approach this defence with caution. Courts have been clear that drunkenness, or the behaviour referred to above, is not a defence to general intent offences. Because Mr. Miskie does not recall sexually assaulting R.H., does not make what he did involuntary.
[84] Second, in support of Dr. Chaimowitz’ conclusion, is his finding that Mr. Miskie has no history of inappropriate behaviours including that he is in a prosocial long-term relationship with Ms. Brady. While I appreciate that a past littered with similar type behaviours could in the proper evidentiary context negate this defence, it does not logically follow that because Mr. Miskie is in a relationship and has not sexually assaulted anyone before, it is more likely the was acting as an automaton. It is largely understood that people who commit acts of sexual assault come from all different backgrounds, many in long term relationships and many living pro-social lives with no criminal record.
[85] Third, while Dr. Chaimowitz found that the words spoken by Mr. Miskie at the time of the assault did not detract from his opinion, I am troubled by this aspect of his evidence. R.H. testified that when Mr. Miskie whispered into her ear he was coherent and not slurring. Further, the words made sense in the context of what was occurring, including a reference to her waking up or being awake, at the very moment she is waking up or at least becoming aware of what was happening. As well as asking if she liked what was occurring as he began to move his hand toward her vagina. While I appreciate that there may be some cases (none were brought to this Court’s attention) where the automaton does engage coherently, in the entire context of what occurred, I find this behaviour strongly suggests to me that Mr. Miskie was conscious of his actions at the time they were occurring.
[86] I also find that the two previous incidents where Mr. Miskie drank to excess, and potentially smoked marijuana, do not establish a pattern of conduct that assists in a finding that Mr. Miskie was extremely intoxicated and was rendered an automaton.
[87] With respect to both incidents, while Mr. Miskie engaged in inappropriate social behaviour (urinating on the floor) which he does not recall, the evidence is not sufficient for a finding that he was acting as an automaton at the time. In both instances, Mr. Miskie was able to be guided back to bed or back into the hotel room. Further, while Ms. Brady can’t remember if Mr. Miskie responded when she spoke to him on both occasions, on at least the one occasion while on vacation, Mr. Miskie responded to her commands that he clean up the urine. While he didn’t do a good job, he made an attempt at it. This suggests to the court some consciousness or control over his actions.
[88] Fourth, I have also considered Mr. Miskie’s behaviour both before and after the sexual assault. Mr. Auger testified that he watched Mr. Miskie get onto the mattress and did not note anything amiss. In fact, all the evidence from those in attendance at the gathering, suggest that while Mr. Miskie was impaired, perhaps the most impaired of the bunch, he did not behave in a manner that caused anyone any concern. In fact, other than some slight slurring, nobody noticed anything amiss.
[89] Further, the evidence of the police officers, albeit a couple of hours after the sexual assault occurred, suggest to me that Mr. Miskie at his highest was confused and slightly impaired when he was arrested. While there are some discrepancies in the officer’s evidence, they were consistent in that Mr. Miskie understood what was going on and responded appropriately to questions.
[90] I further note that on the various videos presented from the police station, Mr. Miskie appears stable, coherent, and responsive to officers. While I appreciate his behaviour several hours after the sexual assault occurred is not dispositive of his behaviour at the time, it is some evidence that I find reinforces my belief that Mr. Miskie was not so intoxicated by alcohol and drug that he was rendered an automaton.
[91] I find Mr. Miskie guilty of sexual assault.
Released: March 13, 2024 Signed: Justice L. Daviau
[^1]: The parties agree, by way of an Agreed Statement of Fact, Exhibit 6, that Male DNA was detected on R.H.’s external genitalia. Mr. Miskie cannot be excluded as a source of the Y-STR Profile developed from that DNA. [^2]: The crown opposed the admission of Dr. Chaimowitz’ evidence at trial. After a voir dire, I provided oral reasons on January 22, 2024, for allowing the evidence at trial.