Justice Minister David Lametti has introduced legislation that would amend the Criminal Code to ensure that people who voluntarily become extremely intoxicated can be held legally responsible for their actions while in that state.
The legislation was introduced in response to a Supreme Court of Canada decision in May which said self-induced extreme intoxication can be used as a defence in cases where someone is accused of an act of violence.
“By striking down this section of the Criminal Code, the court’s decision left a gap in the law. Bill C-28 fills that gap,” Lametti said Friday. “It does so in a way that is both constitutional and fair.
“It amends the Criminal Code so that an individual would be held responsible for the violence they commit while in a state of extreme intoxication if they ended up in that state through their own criminal negligence.”
WATCH | Liberals aim to eliminate self-induced extreme intoxication as a legal defence
The Department of Justice defines extreme intoxication as a rare state that is almost impossible to obtain through alcohol consumption alone — one which leaves a person with no voluntary control over, or awareness of, their actions.
To use this defence successfully, lawyers have to prove through evidence and expert testimony that an individual was in this state of extreme intoxication when they committed the acts of which they’re accused.
In 1994, the Supreme Court ruled that extreme intoxication can be used as a legal defence. A year later, Parliament changed the Criminal Code by introducing section 33.1 to prevent an accused from using extreme intoxication as a defence for violent crimes. The Supreme Court threw out section 33.1 last month, saying that it violated the Charter of Rights.
Bill C-28 does not simply restore section 33.1. It seeks to render self-induced extreme intoxication invalid as a legal defence by moving it into the area of criminal negligence — in the same way that failing to provide the necessities of life for a child is criminally negligent.
A Department of Justice official speaking on background said that if the legislation becomes law, courts will have to decide whether a reasonable person should be expected to know that consuming drugs and alcohol in certain quantities could render them unaware of their actions.
Under the legislation, if lawyers can convince a court that a reasonable person should know the effects of consuming intoxicants in certain quantities, they can prove criminal negligence and the accused can be convicted of the charges they face.
Recent Supreme Court ruling prompted move
The Supreme Court’s rulings in May of this year are what prompted Lametti to draft the legislation. One of the rulings involved the case of former Mount Royal University student Matthew Brown, who was charged with break-and-enter and aggravated assault in relation to a 2018 incident.
After consuming an estimated 2.5 grams of magic mushrooms and drinking about 12 to 14 ounces of vodka and some beer, a naked Brown broke into the home of Janet Hamnett and assaulted her with a broom handle, breaking several bones in her hands.
Brown used the defence of self-induced extreme intoxication and was acquitted. The Alberta Court of Appeal overturned that ruling, finding Brown guilty of aggravated assault. That ruling was appealed to the Supreme Court.
In its 104-page ruling on Brown, the Supreme Court overturned the Alberta Court of Appeal’s decision and urged Parliament to enact legislation to protect victims of violent crimes committed by people in states of extreme intoxication.
The court said that “protecting the victims of violent crime — particularly in light of the equality and dignity interests of women and children who are vulnerable to intoxicated sexual and domestic acts — is a pressing and substantial social purpose.”
The other two cases the Supreme Court ruled on at the same time were unanimous decisions in the cases of David Sullivan and Thomas Chan, two Ontario cases argued together with similar circumstances. The SCC upheld Sullivan’s acquittal and ordered a new trial for Chan.
Lametti said that while this defence can be used in only a handful of cases, it’s important to close the gap in the law because of the misinformation that began circulating after the Supreme Court’s ruling.
“Being drunk or high is not a defence for committing criminal acts like sexual assault,” he said. “That was the law before the Supreme Court decision and that remains the law today. And all Canadians need to understand that clearly.”
Protecting vulnerable groups
Minister for Women and Gender Equality and Youth Marci Ien said the government needed to address widely disseminated comments on social media platforms suggesting that rape and other sex crimes are legal in Canada as long as the perpetrator was intoxicated.
“The extreme intoxication we are talking about is not about being drunk, it’s not about being high. The Supreme Court has clearly said that drunkenness is not a defence to crimes of violence and sexual assault,” she said.
Ien said that women and minorities are already disproportionately vulnerable to acts of violence and sexual violence and allowing the self-induced extreme intoxication defence to stand could threaten their equality and safety.
“We see that Indigenous women and girls, racialized people and LGBTQ2+ people experience gender-based violence more than any other segments in our society,” she said.
“This is exactly why we’re ensuring that individuals who choose to consume drugs or alcohol in a criminally negligent manner are held criminally responsible.”
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