5 Backgrounder

Proposed changes to Canada’s Criminal Code relating to extreme intoxication

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On June 17, 2022, the Minister of Justice and Attorney General of Canada introduced a bill to amend the Criminal Code to respond to the Supreme Court of Canada (SCC) May 13, 2022 decisions on the defence of extreme intoxication (R v. Brown and R v. Sullivan and Chan). The SCC ruled that the section of the Criminal Code that prevented the use of the extreme intoxication defence for most crimes of violence was unconstitutional.

This legislation would close the gap in the law following the SCC decisions by introducing amendments that would ensure that individuals who voluntarily consume intoxicants in a criminally negligent manner, become extremely intoxicated and lose control, and harm others can be held criminally responsible for such acts. Negligence in this context means a person has not taken enough care to avoid a reasonably foreseeable risk of a violent loss of control.

The amendments would promote public safety, particularly for those who are at risk of facing violence, such as women and children, while respecting Charter rights.

The proposed amendments support the Government of Canada’s broader commitment to increase access to justice for victims and survivors of crime and improve confidence in the criminal justice system.

What are the proposed amendments to the Criminal Code?

The Bill proposes to re-enact and amend section 33.1 of the Criminal Code. The new provision would ensure that an individual who harms another person while in a state of extreme intoxication would be held criminally responsible for their actions if there was a foreseeable risk that they could violently lose control over their actions when they consumed the intoxicants.

What is extreme intoxication?

Extreme intoxication, akin to automatism, is a state where a person is unaware of or has no voluntary control over their actions as a result of intoxication. Generally speaking, alcohol alone will not lead to a state of automatism.

It is important to note that an accused person would have to prove they were in a state of extreme intoxication akin to automatism, which requires expert evidence at trial.

What is the impact of the SCC decisions?

The Supreme Court’s decisions have left a gap in the law that this proposed legislation would address. While such cases would be rare, the effect of the SCC decisions is that individuals who negligently self-intoxicate to an extreme level, lose control over their actions and harm others could escape criminal consequences. This is the case even in situations where a reasonable person should have known that they could lose control and harm others, and they made no effort to minimize that risk.

What was the previous Criminal Code provision relating to the defence of extreme intoxication?

Being drunk or high is generally not a defence for committing criminal acts. Being intoxicated to a degree short of extreme intoxication is never a defence where a person commits crimes such as assault, sexual assault, and manslaughter.

Section 33.1 of the Criminal Code, struck down by the SCC, dealt with violent offences committed while in a state of self-induced intoxication. The SCC found that previous section 33.1 denied the accused the availability of using self-induced intoxication as a defence for violent offences like assault and sexual assault, even where a reasonable person would not have foreseen the risk of a violent loss of control. In other words, the SCC concluded that it unfairly held people criminally responsible for actions they committed while in a state of automatism that they could not have reasonably predicted when they chose to consume intoxicants.

What did the Supreme Court of Canada decide in R v. Brown and R v. Sullivan and Chan?

In R v. Brown and R v. Sullivan and Chan, the SCC was asked to consider the constitutionality of section 33.1 of the Criminal Code.

The SCC found section 33.1 was unconstitutional because it violated sections 7 (the right not to be deprived of liberty except in accordance with a principle of fundamental justice) and 11(d) (the presumption of innocence) of the Charter. The SCC found that previous section 33.1 denied the accused the availability of using self-induced intoxication as a defence for violent offences like assault and sexual assault, even where a reasonable person would not have foreseen the risk of a violent loss of control. As a result, section 33.1 is no longer in effect in Canada. The Bill proposes to amend the Criminal Code to replace the old provision and close the legislative gap.

Did the Supreme Court of Canada decide that someone could use drunkenness or being high alone as a defence to assault someone?

No. The SCC was clear that drunkenness is not a defence for committing criminal acts, including assault and sexual assault. The SCC’s decisions do not apply to the vast majority of cases involving a person who commits a criminal offence while intoxicated.

The SCC ruling applies only in the rare instance where a person chooses to ingest substances that cause intoxication so extreme as to result in a state of automatism and then harms another person.