8. Technical Briefing Deck

Bill C-28, An Act to amend the Criminal Code (self-induced extreme intoxication)

June 17, 2022

To close a gap in the criminal law created by the Supreme Court of Canada decisions in R v Brown and R v Sullivan and Chan.
To protect the public and hold accountable individuals who negligently enter a state of self-induced extreme intoxication and harm others.

The extreme intoxication defence was created by the Supreme Court (1994 decision R v Daviault) finding it was required for consistency with the Charter.
The decision was criticized as failing to protect the public and allowing individuals to escape criminal liability for harming others while extremely intoxicated.
In 1995, Parliament enacted section 33.1 of the Criminal Code, which prevented an accused person from relying on extreme intoxication as a defence for violent crimes like assault, sexual assault, and manslaughter.

On May 13, 2022, the Supreme Court of Canada struck down section 33.1 of the Criminal Code because the law captured people who did not meet the minimum requirements for criminal liability under the Charter.
This means that today, an accused person who proves they were in a state of extreme intoxication when they committed a violent offence could escape criminal consequences, even when they acted negligently.
Provinces and territories (PTs), women’s and victim’s organizations, and the general public have expressed concerns with the decisions and have called for a legislative response that would close the legal gap while respecting the Charter.

Extreme intoxication is a state where a person is unaware of, or has no voluntary control over their actions.
Extreme intoxication in unlikely to occur with alcohol alone, absent some other pre-existing conditions.
Extreme intoxication is rare – the vast majority of cases where intoxicated violence occurs do not involve extreme intoxication and neither the SCC decisions nor Bill C-28 affects these situations.
The extreme intoxication defence has strict legal requirements. The defence requires expert evidence and must be proven on a balance of probabilities (a standard that means “more likely than not”) to succeed.
Other conditions can also produce loss of awareness and control, such as a mental disorder or a sudden head trauma, and when raised as a defence the same strict requirements apply.

Re-enacts and amends section 33.1 to provide criminal liability for extremely intoxicated violence, and corrects the constitutional issues the SCC found with the former version of the law.
Uses a criminal negligence fault standard, which the SCC recognized is consistent with the Charter.
Achieves the same public protection and accountability objectives as former section 33.1, but in a way that respects the Charter rights of accused persons.

Bill C-28 would create criminal liability for extreme intoxicated violence based on the judicially recognized standard of criminal negligence, a well-understood standard used in several other offences, including dangerous driving and failing to provide necessaries of life to a child.
Specifically, individuals could be held responsible for general intent violent offences (e.g., sexual assault, manslaughter) if they harm others while in a state of extreme intoxication, where their conduct fell far below the standard expected of reasonable persons in consuming intoxicants (a “marked departure”).
In determining if there was a marked departure, courts would be required to assess if a risk of extreme intoxication leading to harm was objectively foreseeable, and to consider all the relevant facts and circumstances unique to each case (e.g., where the substance was consumed, the accused person’s state of mind, the quantity of the substance and length of time over which it was consumed).

Proposed section 33.1 only comes into play where the extreme intoxication defence is raised by the accused person. This requires expert evidence. Extreme intoxication is never presumed to exist.
In cases where the extreme intoxication defence is raised, proposed section 33.1 would provide an additional way for the prosecution to prove the offence of violence committed: establishing that the accused person’s self-induced extreme intoxication was criminally negligent.

Law Reforms: 2021 Judges Act amendments to improve judicial training and understanding of the social context surrounding sexual violence (C-3); 2018 Criminal Code amendments to expand “rape shield” provisions and help ensure sexual assault matters are decided fairly and without the influence of myths or stereotypes (C-51); 2019 Criminal Code amendments including to better protect victims from intimate partner violence at bail and sentencing (C-75).
Justice Canada Program Funding: funding to provinces/territories and non-governmental organizations to support increased access to justice for victims and survivors; and commencing 2021-22, $85.3M over 5 years to support a national program for independent legal advice and independent legal representation for victims of sexual assault, as well as to support pilot projects for victims of intimate partner violence.
Budget 2022 provided $539.3M over five years, starting in 2022-23, to Women and Gender Equality Canada to enable provinces and territories to supplement and enhance supports to prevent gender-based violence and support survivors.
Budget 2021 committed $601.3 million over five years “to advance towards a new National Action Plan to End Gender-Based Violence”.