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Joseph Neuberger, Neuberger & Partners LLP
On May 13, 2022 the Supreme Court of Canada ruled that Parliament had overstepped their bounds when enacting section 33.1 of the Criminal Code, eliminating the defence of self-induced extreme intoxication in cases that involved interference with bodily integrity. Thus, the Supreme Court struck down section 33.1 as being unconstitutional. The legislation was intended to address sexual assault and domestic violence involving alcohol. Until new legislation is crafted an accused who successfully argues extreme intoxication will be found not guilty of a criminal offence.
The legislation was crafted in response to the 1994 Supreme Court decision in Daviault. At the time, there was public outrage over the Daviault ruling and many journalists were being told that the ruling gave men a “license to rape” if they drink alcohol first. In reality, the defence is extremely rare and shifts the onus to the defence to prove that the accused was actually in a state akin to automatism.
The defence is so rare that it took over 25 years for the legislation to be successfully challenged in the courts of appeal.
The new decision, R. v. Brown, 2022 SCC 18, involved three cases in which the accused had taken intoxicants other than alcohol and were witnessed to be in an unexpected state of delusion. In two cases, Sullivan and Chan, the accused attacked and could not recognize their own parents. Sullivan was charged with aggravated assault. Chan was charged with aggravated assault and manslaughter. Brown was charged with aggravated assault after breaking and entering a woman’s home. In all three cases the accused were hallucinating and delusional when they engaged in the physical assaults.
The Supreme Court recognized the intent of the legislation, targeted to protect women and children from domestic violence and sexual assault. Nevertheless, the legislation specifically stated that a person in a state of automatism or psychosis must be held accountable for their actions even when they had no control over their actions at the time or lacked the intent. This essentially substitutes the moral blameworthiness for becoming intoxicated with the secondary, unintended crime that resulted.
The crafting of the legislation was based on input from women’s advocates who had been vocal in the media, generating public hysteria about the Daviault decision. At the time, the Court had been very clear that though Daviault should have been permitted to raise the intoxication defence it was unlikely that he would succeed.
Indeed, in Brown, Justice Kasirer notes “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.”
The problem with the legislation is that Parliament sought to hold the accused responsible for the resulting crime. Parliament, when having enacted this section, rejected creating a new stand alone offence of criminal intoxication as they thought it would have the appearance of a “drunkenness discount.”
Instead, s. 33.1 deems a person to have departed markedly from the standard of care expected in Canadian society whenever a violent act occurs while the person is in a state of extreme voluntary intoxication akin to automatism. This is so even where a loss of control or awareness of one’s behaviour and a risk of harm was unforeseeable and even where the accused’s conduct did not in fact depart markedly from the standard of a reasonable person.
Justice Kasirir suggested that Parliament could try to minimize the infringement on Charter rights by focusing on better defining the “marked departure” element of the manner in which the intoxicants were acquired and consumed.
While giving deference to Parliament on how they choose to craft their legislation, Justice Kasirir stated that “even if those who defend the law as minimally impairing were right, I am unequivocally of the view that s. 33.1 must fail on the last branch of the proportionality test which reveals the most profound failings of the provision.”
Minister of Justice David Lametti has publicly stated that the government is reviewing the decision carefully and they consider the resulting “gap” in the Criminal Code to be an urgent matter.