In case you missed it, and if you blinked you probably did, Parliament passed Bill C-28 in June 2022. Bill C-28 amended provisions of the Criminal Code that restricted those who commit violence from using excessive consumption of intoxicants as a defence.
Parliament acted swiftly following the Supreme Court’s decision in R v. Brown to strike down Sec. 33.1 of the code after Matthew Brown, a 26-year-old university student, argued he was too high on mushrooms to remember breaking into a woman’s Calgary home and attacking her.
However, more than a dozen women’s organizations pleaded with the government to slow down and treat their concerns about Bill C-28’s effectiveness seriously.
Parliament didn’t listen, to the detriment of women and Canadian democracy. While Bill C-28 purports to impose some constitutional constraints on the “extreme intoxication” defence, in practice it will do no such thing. Everyone should be concerned.
Most victims are women
The effects of the extreme intoxication defence have not been felt equally by men and women.
The original Sec. 33.1 was a response to the Supreme Court’s 1994 R v. Daviault decision, creating the “extreme intoxication” defence under common law and using it to acquit an accused of sexual assault. Henri Daviault was acquitted of sexually assaulting a 65-year-old woman with a physical disability after consuming several beers and brandy.
My co-authored article with University of Ottawa legal scholar Elizabeth Sheehy shows that men have overwhelmingly raised extreme intoxication in defending themselves, and most of their victims have been women.
It’s true that the state of extreme intoxication is, well, extreme. There must be expert evidence that the accused was so intoxicated that he was operating as an automaton — not only unaware that he was committing a crime, but unable even to control his body.
It’s also true that the medical community believes alcohol alone will not cause such a state. This means that the defence should succeed only in the rarest cases. However, our research showed that it succeeded in six of 30 cases in the year between Daviault and the passage of Sec. 33.1, and that alcohol was the intoxicant in most of these successful cases.
Furthermore, the defence was raised with some regularity even after the passage of Sec. 33.1 — 86 times to date.
Two criteria must be met
When an accused person is able to find an expert to testify that he was acting as an automaton as a result of self-induced intoxication, the Criminal Code’s new Sec. 33.1 now means that the defence can be used unless the Crown can prove beyond a reasonable doubt that the accused ought to have foreseen two things.
First, he should have known that consuming those particular intoxicants would cause him to lose control. Second, he should have foreseen that harm to another person would result.
It will be nearly impossible for Crown prosecutors to show that the accused should have foreseen the harm. Most extremely intoxicated people do not harm others, and there is no way of proving that taking a particular combination of intoxicants causes violence.
Even Brown’s defence lawyer says the new law will be “entirely ineffective” in restricting the defence.
Criminal lawyers will now be able to raise self-induced extreme intoxication as a defence more frequently. This will not only likely result in further acquittals, but also lengthier trials, which are more arduous for victims.
The availability of the extreme intoxication defence will also affect decisions about prosecutions and plea deals since prosecutors will need to assess the likelihood of conviction. Police will consider the accused’s intoxication level in deciding whether to charge them. Women’s reporting rate for violence, already extremely low, may drop even further.
Parliament can make its own assessment
The Supreme Court struck down Sec. 33.1 of the Criminal Code because it ruled the section could result in the conviction of “innocent” individuals too intoxicated to know what they were doing.
It also suggested that a future law restricting the defence could be constitutional if it required the Crown to show that an extremely intoxicated accused could have reasonably foreseen both that he would lose control and that harm to another would result.
The court also made clear that Parliament is entitled to deference — in other words, parliamentarians can make their own assessments of what the Canadian Charter of Rights and Freedoms requires when responding to the very serious issue of violence against women.
Parliament had good reasons to depart from the Supreme Court’s suggested fix, given the flaws of its R v Brown ruling.
The court failed to follow its own prior case law that women’s equality rights should be considered when deciding whether sexual assault laws violate men’s right to a fair trial under Sec. 7 of the Charter.
Instead, Justice Nicholas Kasirer wrote that women’s rights should be included in the “societal interests” the court considers in deciding whether Sec. 33.1 justifiably violates men’s rights.
In theory, Sec. 1 of the Charter permits government limitations to any right so long as they are “demonstrably justified in a free and democratic society.” In practice, the court has never ruled that a Sec. 7 violation is saved by such Sec. 1 considerations.
Parliament’s approach is identical to the one suggested by the Supreme Court. But the federal government had a choice in the way it amended Sec. 33.1, given the court’s emphasis on deference.
For instance, it could have required only that the Crown show that it was reasonably foreseeable that the accused would lose control.
Unfortunately, Parliament bypassed the usual democratic processes. This included studying the bill in committee hearings where parliamentarians could have heard from expert witnesses and women’s groups.
The law passed within days of its introduction. Such speed is ironic given the government’s insistence that reliance on the extreme intoxication defence would be rare. If the extreme intoxication defence is so rare, Parliament had time to carefully deliberate and get it right.
Its fast-track approach to a flawed law illustrates the problem of “performative politics.” Results take a back seat to appearance, and the abandonment of careful deliberation is rationalized as necessary because of a righteous cause and a fearful population.