In May, the Supreme Court of Canada struck down a section of the criminal code that said self-induced extreme intoxication was not a defence for violent crimes. Since then, the Liberal government has introduced, and passed, legislation that they say fills the gap left by the Supreme Court ruling. On the July 15 episode of The Final Word, Abby Hughes talks to legal experts and does a deep dive into the changing laws surrounding extreme intoxication.
In May, the Supreme Court of Canada struck down a law that had prohibited the use of extreme intoxication as a defence for violent crime. This decision was met with significant backlash, particularly from feminist groups and organizations that support victims of domestic violence, and has prompted the Liberal government to pass a new bill they say fills the gap left by the ruling.
The law struck down—section 33.1of the Criminal Code—was first passed in 1995 following a case where a drunk man sexually assaulted his neighbor. Henry Daviault was acquitted of his sexual assault charge after claiming that he was intoxicated to a point where he could not have known he was breaking the law.
After public outcry against this acquittal, the government introduced section 33.1. This law said that people who were so intoxicated that they had no control over themselves were still guilty of crimes they committed if the intoxication was self induced and the crime they committed was violent.
However, three complex assault cases involving alcohol and different types of drugs or medication have since worked their way up to the Supreme Court. In all three, a male assailant under the influence of a significant amount of drugs, or a mix of drugs and alcohol, committed a violent crime. In two out of the three cases, that crime was against a family member.
Ultimately, when the Supreme Court decided these cases on May 13, they ruled that these men were extremely intoxicated to the point of automatism.
“There’s a level of intoxication that, in criminal law, they’re calling ‘extreme’. That a person can be so intoxicated that they become an automaton,” says Chris Sewrattan, a criminal lawyer and law professor at the Lincoln Alexander School of Law. “What it basically boils down to is, you are so out of it that you are unable to act voluntarily. Not only do you not know what you’re doing, but you’re unable to stop yourself from doing what you’re doing.”
Given the contradiction between the court’s decision that the men were in this robot-like, automatistic state, and how section 33.1 criminalized them anyway, the Supreme Court struck down the law, saying it was unconstitutional.
The decision has caused some to express disappointment. Women’s rights groups and organizations supporting domestic violence survivors are some of the most prominent voices expressing displeasure.
As a result of the ruling, the Liberal government has passed a bill to mitigate the gap left by the removal of section 33.1. Bill C-28, introduced on June 17, says that people who have committed violent crimes can’t use the extreme self-induced intoxication defence if they consumed drugs or alcohol in a negligent way.
The bill passed and was made law on June 23.
Kerri Froc, a feminist legal scholar and chair of the national steering committee of the National Association of Women in Law, worries about the current law. She thinks it will be too hard to prove that someone who committed an assault could have foreseen how intoxicated they’d become and the harm they could cause.
Vanshika Dhawan, a law student and freelance columnist, said that it’s difficult to know how the law will be applied because it has yet to be used in court.
“It’s really dependent on how it’s interpreted by the courts and how it’s used by the courts,” said Dhawan. “I completely empathize with the hesitation around trusting the courts to get it right, because they so rarely have and do when it comes to sexual violence.
Want more? Listen to the full episode of The Final Word from July 15, 2022 on Soundcloud, or wherever you listen to podcasts.