Has The Supreme Court of Canada Allowed Intoxication As A Defence?

May 20, 2022


This article was spawned over a recent virtual presentation at a high school that we presented at; the topic of discussion – the legalities of sexting, nudes, and intimate images. During the Q&A, a student asked us about a recent Canadian court decision, specific to sexual assault, and the defence of intoxication for those accused of this crime. This question caught us by surprise, but absolutely demonstrated once again that online clickbait headlines can create a false narrative.

On May 13th 2022, the Supreme Court of Canada (SCC) released their decision (1) on the constitutionality of sections 33.1 and 33.2 of the Criminal Code of Canada that state:

33.1 (1) It is not a defence to an offence referred to in subsection (3) that the accused, by reason of self-induced intoxication, lacked the general intent or the voluntariness required to commit the offence, where the accused departed markedly from the standard of care as described in subsection (2).

(2) For the purposes of this section, a person departs markedly from the standard of reasonable care generally recognized in Canadian society and is thereby criminally at fault where the person, while in a state of self-induced intoxication that renders the person unaware of, or incapable of consciously controlling their behaviour, voluntarily or involuntarily interferes or threatens to interfere with the bodily integrity of another person.

This section of the Criminal Code was enacted in September 1995, and was created by the` Canadian parliament to remove the defence of self-induced intoxication when it came to crimes that involved, “an assault or any other interference or threat of interference by a person with the bodily integrity of another person.” – this would include sexual assault. The purpose of sections 33.1 and 33.2 – Parliament wanted to protect victims, especially women and children, against extreme intoxicated violence and hold offenders accountable for their decision to voluntarily ingest intoxicants, where that choice created a risk of violence, and prohibit that person from using their intoxication as a defence. It should be noted that when these two sections were first introduced in 1995, several respected Canadian legal scholars at the time did opine that these two sections were too broad in power, and would not survive a Charter challenge if and when such a challenge was brought before the SCC.

The case that lead the SCC to look at the constitutionality of sections 33.1 and 33.2 – a 2018 incident where a Calgary man, who had ingested both alcohol and psilocybin (magic mushrooms), broke into several homes, and in one case seriously assaulted a female occupant with a broom handle causing significant injury. The accused was arrested and charged with break and enter and aggravated assault. (1)

In the lower courts, defence counsel argued that sections 33.1 and 33.2 were a clear violation of the Canadian Charter of Rights and Freedoms, given that a court could convict an accused without proof of the required Mens Rea (guilty mind) – a well-entrenched legal pillar needed to prove a crime in Canada. The defence further argued, which was supported by expert testimony from a forensic psychiatrist, that the combination of alcohol and psilocybin created a state of “automatism” in his client – a term describing unconscious and involuntary behaviour which would negate one’s Mens Rea, and without a guilty mind, an accused could not be found guilty of the crimes that they were arrested for. In their decision, the SCC of Canada agreed with the defence stating:

“ I would answer the constitutional questions as follows: s. 33.1 of the Criminal Code infringes ss. 7 and 11(d) of the Charter and the infringements are not justified under s. 1 of the Charter, I would allow Mr Brown’s appeal. Section 33.1 should be declared unconstitutional and of no force or effect pursuant to s 52(1) of the Constituion Act ,1982. The trial judge concluded in this case, based on the evidence brought before her by the defence , that Mr Brown was in a state of extreme intoxication akin to automatism. That finding was not challenged on appear. His acquittal on the count of break and enter and committing aggravated assault was wrongly set aside because the Court of Appeal erred in deciding that s.33.1 is constitutional. As a result, I would restore Mr Brown’s acquittal.

The SCC further stated in their decision:

“It bears repeating: the gravamen of Mr. Brown’s charged offence is not extreme intoxication, it is the violent assault that he is said to have committed while he did not have the capacity for voluntary action.”

So What Does This SCC Decision Mean:

When this SCC decision was made public, clickbait headlines being reported in the media would leave Canadians to believe that the defence of intoxication could be successfully used to escape charges specific to violence, more specifically sexual assault. This was not a true reflection of what the SCC actually stated in this case. The justices made it perfectly clear that:

  • Intoxication, short of “Automatism”, can NOT be used as a defence to violent crimes of general intent, such as assault or sexual assault. The SCC made it clear that this fact is also supported in Canadian case law. The SCC stated in their decision, “It thus bears emphasizing that Mr. Brown was not simply drunk or high. To be plain: it is the law in Canada that intoxication short of automatism is not a defence to violent crimes of general intent in this country.”
  • This case was specific to alcohol, and certain types of drugs, when mixed together could provoke psychotic, delusional, and involuntary conduct – known in Canadian Law as “Automatism”. This extremely rare legal threshold is one that the defence would need to prove beyond a reasonable doubt to the court, and an extremely high bar to prove.
  • The SCC also stated clearly in their decision that there was a path for Parliament to create new legislation, that could hold an extremely intoxicated person accountable for a violent crime when they voluntarily chose to create the risk of harm by ingesting intoxicants, and that such a law, if drafted appropriately, would not be in conflict with the Charter and Mens Rea.

Once again, this is not a drunkenness case that supports the defence of intoxication, but rather a case involving certain drugs which, when taken in combination with alcohol, can provoke psychotic, delusional, and involuntary conduct – “Automatism”. This SCC decision has NO impact on the rule of Canadian case law that intoxication, short of the extremely rare state of Automatism, as a defence to violent crimes of general intent, such as assault or sexual assault.

Also, in this decision, we believe that the SCC has provided our lawmakers with a path to create new legislation, where an extremely intoxicated person would be held criminally responsible when they voluntarily chose to create the risk of harm by ingesting intoxicants. We believe that there is a huge opportunity to create new legislation and a stand-alone offence of what some legal experts are calling “Criminal Intoxication.” As suggested by the SCC, if drafted appropriately, such a law would withstand the scrutiny of a Charter challenge, based upon Mens Rea, and likely be upheld by the SCC. Let’s just hope that rather than creating a committee to study this decision, our government just acts upon it, starts the consultation process with legal experts, and creates a new and needed law of “Criminal Intoxication” here in Canada, as was suggested by the SCC.



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