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Introduction of Criminal Code amendments related to extreme intoxication

Issue

On June 17, 2022, the Minister of Justice and Attorney General of Canada introduced amendments to the Criminal Code to ensure that individuals who harm others in a state of extreme intoxication caused by their own negligence can be held criminally responsible. Negligence in this context requires that there be a reasonably foreseeable risk of a violent loss of control that the individual takes no steps (or unreasonably inadequate ones) to avoid. Extreme intoxication, in a legal sense, is a rare state in which a person has no voluntary control or awareness of their actions.

There has been significant media coverage regarding the May 13, 2022, Supreme Court of Canada decisions in R v. Brown and R v. Sullivan and Chan that found the previous provision unconstitutional and of no force or effect. Initial reaction was largely negative; ongoing reaction has been mixed. Social media was very active following the SCC decisions. Women’s and victims’ organizations and youth, specifically young women, were very engaged and expressed concern that the decisions will have a chilling effect on the reporting of violent offences, especially sexual assaults, and that individuals who commit serious crimes will not be held responsible. Some misinformation circulated online stems from confusion about the decisions, including the perception that being drunk or high, but short of having no conscious control over one’s actions, could be used as a defence to avoid criminal responsibility for serious offences, such as sexual assault. A number of Parliamentarians, provincial governments and stakeholders have called on the federal government to act quickly to close the gap in the law.

Parliamentarians, stakeholders, and youth are expected to react positively to the announcement of the introduction of proposed legislation to close the gap in the Criminal Code following the SCC decisions. A moderate level of media and public attention is anticipated.

Key Messages

Questions and Answers

Q1. What are the proposed amendments?

The bill proposes replacing section 33.1 of the Criminal Code, which was found unconstitutional by the Supreme Court of Canada. The amendments would ensure that an individual who chooses to take intoxicating substances in a negligent manner, would be held criminally responsible for violence they inflict on others.

Q2. What does “negligent manner” mean?

In the context of intoxication, acting in a “negligent manner” is when a person should have known there is a risk of losing control and harming another person when taking intoxicating substances, but fails to minimize the risk. It is also when a person sees the risk but their behaviour falls far below what a reasonable person would have done to avoid losing control.

Q3. What is the previous Criminal Code provision relating to the defence of extreme intoxication?

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.

The defence of extreme intoxication will not be relevant in the overwhelming majority of cases involving alcohol alone.

Section 33.1 of the Criminal Code, now struck down by the SCC, dealt with violent offences committed while in a state of self-induced extreme intoxication.

The SCC found that previous section 33.1 denied the availability of using self-induced intoxication as a defence for violent offences such as assault and sexual assault, regardless of whether a reasonable person would 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 whatever intoxicated them.

Q4. What is extreme intoxication/automatism?

Extreme intoxication akin to automatism is a state where a person is unaware of or has no voluntarily control over their actions as a result of intoxication.

Q5. What kind of intoxicants, or combination of intoxicants, could induce a state of automatism?

Research on automatism and what can induce a state of automatism is limited. Generally speaking, alcohol alone will not lead to a state of automatism.

Consumption of a variety of both legal (e.g. alcohol, cannabis, prescription opioids) and illegal (e.g. magic mushrooms, illegal opioids) substances can result in intoxication. The risks of severe intoxication are greater when individuals consume high concentrations amounts of an intoxicating substance or when they consume more than one intoxicating substance at the same time.

It is recommended that individuals avoid mixing substances such as alcohol, cannabis and other prescription and non-prescription drugs. The results can be unpredictable and dangerous.

Information about the risks associated with controlled substances, alcohol, and cannabis is available from Health Canada.

There are guidelines available on the consumption of cannabis and alcohol, which are being updated by the Canadian Centre on Substance Use and Addiction:

Q6. What did the Supreme Court of Canada decide in R v. Brown / 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 held that section 33.1 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 and declared the section of the Criminal Code to be unconstitutional. This is because the provision could have resulted in a conviction in the absence of proving a minimum level of fault (criminal negligence) required by the Charter. As a result, section 33.1 is no longer in effect in Canada.

Q7. What is the effect of the SCC decisions?

Following the SCC decisions, in the very rare circumstance where an individual harms another person while in a state of self-induced extreme intoxication and have no control over their actions, they may escape criminal liability.

In other words, if changes are not made to the Criminal Code, individuals who negligently self-intoxicate to an extreme level, lose control over their actions and harm others could escape criminal consequences. This is true even in cases where it was reasonably foreseeable that they could lose control and harm others, and they made little or no effort to minimize that risk.

The proposed amendments aim to close that gap in the law to ensure that people who reach a state of extreme intoxication in a negligent way and who harm others would be held criminally responsible for their actions.

Q8. Did the SCC rule that you could use being drunk or high as a defence if you assault someone?

No. The Supreme Court of Canada was clear that drunkenness is not a defence for committing criminal acts, including assault and sexual assault. The Court’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.

Q9. Would the law apply to people who go in to a state of automatism after taking medication prescribed by their doctor and, in turn, commit an assault?

Under the proposed legislation, the extreme intoxication defence would be available to individuals who could not have reasonably foreseen the risk of a violent loss of control when they consumed an intoxicant. For example, taking a prescription drug and suffering an unexpected reaction to the medication.

However, it is the role of the courts to determine whether the defence should be available in the specific circumstances of a case. Each situation is different.

Q10. How will the proposed legislation address the Charter concerns raised by the SCC?

The SCC found section 33.1 of the Criminal Code to unjustifiably violate the principles of fundamental justice and the presumption of innocence under sections 7 and 11(d) of the Charter.

This is because it allowed a conviction without proof that the accused had the capacity or intent to commit the crime. The SCC further found that section 33.1 criminalized people who behaved responsibly in consuming intoxicants, such as cases where a state of extreme intoxication was an unforeseeable side effect of a prescription medication.

To address this, the proposed amendments would only apply to individuals who are criminally negligent in their consumption of intoxicants and who go on to harm others while in a state of extreme intoxication. It is also important to remember that drunkenness is not a defence for committing criminal acts.

Q11. Women and children, particularly Indigenous women, girls and 2SLGBTQQIA+ people are disproportionately affected by sexual violence, gender-based violence, and intoxicated violence. What is the Government doing to support these populations and prevent victimization?

Protecting victims of violent crime, particularly in light of the equality and dignity interests of women and children who are vulnerable to intoxicated sexual and family violence, is a pressing and substantial social purpose.

Family violence and intimate partner violence (IPV) are serious public health issues and have immediate and long-term consequences for victims, including physical, mental, cognitive and financial.

Many victims are unaware of their rights, are often unsure how to navigate the criminal justice system, and can have limited financial means to proceed with a legal procedure. The proposed amendments to the Criminal Code are one of several ways the federal government is taking action to support victims and survivors of crime and to improve confidence in the criminal justice system.

The Federal Victims Strategy, led by Justice Canada, draws on specialized policy initiatives and Victims Fund project funding to increase access to justice for victims and survivors of crime and, give victims of crime a more effective voice in the criminal justice system, and uphold victims’ rights as outlined in the Canadian Victims Bill of Rights.

Justice Canada’s Victims Fund provides grants and contributions to support projects and activities that encourage the development of new approaches, promote access to justice, improve the capacity of service providers, foster the establishment of referral networks, and/or increase awareness of services available to victims of crime and their families.

Budget 2022 provided $539.3 million over five years, starting in 2022-23, to Women and Gender Equality Canada to enable provinces and territories to supplement and enhance services and supports within their jurisdictions to prevent gender-based violence and support survivors.

Other legislative changes include amendments to Judges Act and the Criminal Code, which require newly appointed superior court judges to participate in continuing education so that they are aware of and understand the social context in which they hear sexual assault matters. They also must provide written reasons, or enter them in to the record, when deciding sexual assault matters.

Other recent changes to the Criminal Code address sexual assault laws dealing with consent, expanding “rape shield” provisions clarifying how and when a complainant’s past sexual history can be entered as evidence during a trial. The goal being to ensure that survivors of sexual assault and gender-based violence are treated with the utmost compassion and respect.

Human trafficking, which includes sexual exploitation and forced labour, is one of the most heinous crimes imaginable. It devastates the victims and survivors, their families, communities and society as a whole. As part of the Government of Canada’s National Strategy to Combat Human Trafficking, Public Safety Canada was allocated $1.2 million annually over a period of 4 years, and $1.2 million ongoing, for marketing activities to increase awareness of human trafficking so that Canadians can better understand the signs of this crime.

Q12. Indigenous peoples, Black persons and members of marginalized communities are overrepresented in the criminal justice system for drug-related offences. Could this legislation make the situation worse?

The proposed amendments are about holding individuals responsible when they harm others after choosing to ingest intoxicants without showing enough care to prevent the foreseeable risk of a violent loss of control. The availability of the extreme intoxication defence is extremely rare. An accused person must prove they were in a state of extreme intoxication akin to automatism and that requires expert evidence at trial.

The Government of Canada knows that, tragically, Indigenous peoples, Black persons and members of marginalized communities are overrepresented as offenders and victims in the criminal justice system, including for drug-related offences.

Taking steps to address this reality is critical to building a fairer, more effective justice system. This includes creating evidence-based policies that reduce harm and keep everyone safe and healthy.

The Government of Canada also introduced Bill C-5, An Act to amend the Criminal Code and the Controlled Drugs and Substances Act (CDSA), which is part of the Government’s efforts to address systemic racism and discrimination in the criminal justice system. The Bill, now before Parliament, proposes to amend the CDSA to repeal all six of the Act’s mandatory minimum penalties (MMPs) for some drug-related offences.

Through Budget 2021, the Government of Canada has invested in drug treatment courts (DTC) including $40.4 million over five years, beginning in 2021-22, and $10 million ongoing, to support up to 25 additional courts. DTCs are a post-conviction intervention that offer non-violent individuals with problematic substance use the opportunity to complete a court monitored drug treatment program as an alternative to incarceration.

Media Enquiries: 613-957-4207, media@justice.gc.ca
Spokesperson: Media Relations, Department of Justice Canada
Prepared by: Allison Storey, Senior Communications Advisor
Last updated: June 16, 2022