Any substantive changes in this Library of Parliament Legislative Summary that have been made since the preceding issue are indicated in bold print.
On 17 June 2022, the Honourable David Lametti, Minister of Justice, introduced Bill C‑28, An Act to amend the Criminal Code (self-induced extreme intoxication)1 in the House of Commons. The House of Commons and the Senate moved quickly to pass Bill C‑28, and it received Royal Assent on 23 June 2022, a few days after it was introduced.
Bill C‑28 was introduced in response to the Supreme Court of Canada (SCC) decision in R. v. Brown.2 In that case, the SCC ruled that section 33.1 of the Criminal Code (the Code) – which denies a defence founded on intoxication akin to automatism for certain violent offences set out in section 33.1(2) of the Code – violates the principles of fundamental justice and the presumption of innocence guaranteed by sections 7 and 11(d) of the Canadian Charter of Rights and Freedoms (the Charter)3 and that these breaches are not justified, contrary to section 1 of the Charter. Consequently, the SCC declared section 33.1 of the Code unconstitutional and of no force or effect.
Bill C‑28 amends section 33.1 of the Code to provide that a person in a state of self-induced extreme intoxication akin to automatism who commits a violent crime set out in section 33.1(3) may be held criminally responsible for this crime if they consumed intoxicating substances negligently. The legal standard of criminal negligence built into section 33.1 of the Code takes into account the objective foreseeability of the risk that consuming intoxicating substances could cause extreme intoxication and lead a person to harm another person.
The elements that make up a crime in Canadian criminal law are fundamental to understanding the amendments the bill makes to section 33.1 of the Code.
Every criminal offence consists of two elements – one physical and one mental – that the Crown must prove beyond a reasonable doubt in order to convict a person accused of a criminal offence. The Crown must first establish the physical element, in other words, prove that the accused committed the prohibited act voluntarily (the actus reus):
The physical element, which may be either an act or an omission, is known as the actus reus or guilty act. There can be no guilty act or actus reus unless an act is the result of a willing mind at liberty to make a definite choice or decision; in other words, there must be the will-power to do an act whether or not the accused knew that it was prohibited by law.4
The Crown must then prove that the accused committed the prohibited act intentionally or recklessly5 (the mens rea,6 which refers to establishing criminal intent). In common law, the concept of “intent” is based on the principle that there can be no criminal liability without criminal fault.
In 1994, the SCC issued a decision in Daviault. Mr. Daviault was accused of sexually assaulting an elderly woman. In this case, the defence submitted expert evidence showing that a person who consumes the same volume of alcohol as Mr. Daviault did the day of the assault
might suffer an episode of “l’amnésie-automatisme,” also known as a “blackout.” In such a state the individual loses contact with reality and the brain is temporarily dissociated from normal functioning. The individual has no awareness of his actions when he is in such a state and will likely have no memory of them the next day.7
The SCC was asked to determine whether an extreme state of intoxication akin to automatism or a disease of the mind can constitute a basis for defending an offence of general intent,8 such as sexual assault.
The SCC amended the common law rule established in Leary9 that intoxication cannot be a defence for offences of general intent. In fact, the SCC determined that the strict application of this common law rule was a violation of sections 7 and 11(d) of the Charter.10 Under section 7 of the Charter, “[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” Section 11(d) of the Charter provides that any person charged with an offence has the right “to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.”
Thus, the SCC created an exception under which the automatism defence can be used to raise a reasonable doubt. In other words, a person charged with an offence of general intent is permitted to establish that, at the time of the offence, they were in a state of extreme intoxication akin to automatism. The SCC determined that the onus was on the accused to show that, on the balance of probabilities, they were in a state of extreme intoxication akin to automatism, which would require expert evidence.11
To justify creating this exception, the SCC explained that the exception targeted a state that “would render an accused incapable of either performing a willed act or of forming the minimal intent required for a general intent offence.” 12 The SCC reiterated that
[t]he mental aspect of an offence, or mens rea, has long been recognized as an integral part of crime. The concept is fundamental to our criminal law. That element may be minimal in general intent offences; nonetheless, it exists.13
The SCC further explained that the intention of becoming intoxicated cannot be used to establish the mens rea of another offence, such as sexual assault, as this would be contrary to the Charter:
The consumption of alcohol simply cannot lead inexorably to the conclusion that the accused possessed the requisite mental element to commit a sexual assault, or any other crime. Rather, the substituted mens rea rule has the effect of eliminating the minimal mental element required for sexual assault. Furthermore, mens rea for a crime is so well recognized that to eliminate that mental element, an integral part of the crime, would be to deprive an accused of fundamental justice.14
The SCC added that voluntary intoxication is not yet considered a crime, and that, even if it were, “it does not follow that its consequences in any given situation are either voluntary or predictable.” 15
Lastly, the SCC noted that the exception to the Leary rule will apply only on rare occasions:
Given the minimal nature of the mental element required for crimes of general intent, even those who are significantly drunk will usually be able to form the requisite mens rea and will be found to have acted voluntarily. In reality it is only those who can demonstrate that they were in such an extreme degree of intoxication that they were in a state akin to automatism or insanity that might expect to raise a reasonable doubt as to their ability to form the minimal mental element required for a general intent offence.16
The decision in Daviault prompted a public outcry, notably from women’s rights advocacy groups; Parliament responded quickly17 by adding section 33.1 to the Code in 1995:
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.
(3) This section applies in respect of an offence under this Act or any other Act of Parliament that includes as an element an assault or any other interference or threat of interference by a person with the bodily integrity of another person.
Section 33.1 of the Code meant that the defence of self-induced intoxication akin to automatism could never be raised in cases of the violent offences of general intent identified in section 33.1(3).18 Three conditions had to be met for section 33.1 of the Code to apply:
(1) that the accused was intoxicated at the material time;
(2) the intoxication was self-induced; and (3) that the accused departed markedly from the standard of reasonable care generally recognized in Canadian society by interfering or threatening to interfere with the bodily integrity of another person.19
In addition, the marked departure under section 33.1(1) depended on proof of two facts:
First, that the person must be in a state of self-induced intoxication that renders them unaware of, or incapable of controlling, their behaviour. Second, the violent act must occur while they are in that state. These facts are best understood as conditions of liability and not measures of fault because neither of them import a criminal negligence standard.20
In R. v. Brown, the SCC was asked to make a determination on the constitutionality of section 33.1 of the Code:
[I]n light of, on the one hand, the principles of fundamental justice and the presumption of innocence guaranteed to the accused by ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms and, on the other, Parliament’s aims to protect victims of intoxicated violence, in particular women and children, and hold perpetrators to account.21
Particularly, the SCC had to consider
the circumstances in which persons accused of certain violent crimes can invoke self-induced extreme intoxication to show that they lacked the general intent or voluntariness ordinarily required to justify a conviction and punishment.22
On 13 May 2022, the SCC issued a unanimous decision in which it concluded that section 33.1 of the Code infringes on sections 7 and 11(d) of the Charter and that these violations are not justified under section 1 of the Charter. The SCC therefore declared section 33.1 of the Code unconstitutional and of no force or effect.23 On the same day, the SCC issued its decision in R. v. Sullivan24 in which it applied the Brown decision.
Of note, the SCC confirmed in R. v. Brown that “[t]he rule that intoxication is not a defence to general intent crimes [such as assault and sexual assault] remains untouched by this appeal, except in the case of intoxication akin to automatism.” 25
The SCC made clear that
most degrees of intoxication do not provide a defence to crimes of general intent. … Only the highest form of intoxication – that which results in a person losing voluntary control of their actions – is at issue here: extreme intoxication akin to automatism as a defence to violent crimes of general intent and, then again only intoxication that is self‑induced.26
Moreover, the defence of self-induced extreme intoxication remains available for offences of specific intent (such as murder), regardless of whether Bill C‑28 is adopted.
The SCC found that section 33.1 of the Code violates section 7 of the Charter such that it allows a person without criminal intent, in other words, who is not morally at fault, to be found guilty of a crime.
As the SCC explained:
It is a principle of fundamental justice that proof of penal negligence, in the form of a marked departure from the standard of a reasonable person, is minimally required for a criminal conviction, unless the specific nature of the crime demands subjective fault.27
However, the SCC indicated that the intention to become intoxicated is a condition necessary for the correct application of section 33.1 of the Code, but that “[i]ntention to become intoxicated to any degree suffices.” In addition, “it matters little that a person did not foresee their loss of awareness or control.” 28
The SCC also found section 33.1 of the Code in violation of section 7 of the Charter because it
directs that an accused person is criminally responsible for their involuntary conduct. Because involuntariness negates the actus reus of the offence, involuntary conduct is not criminal, and Canadian law recognizes that the requirement of voluntariness for the conviction of a crime is a principle of fundamental justice.29
The Supreme Court found section 33.1 of the Code in violation of section 11(d) of the Charter, which protects the right to be presumed innocent until proven guilty, because it
improperly substitutes proof of self-induced intoxication for proof of the essential elements of an offence.
As noted, s. 33.1 unequivocally removes a defence that the accused lacked the general intent or voluntariness to commit the offence. Accordingly, the fault and voluntariness of intoxication are substituted by s. 33.1 for the fault and voluntariness of the violent offence.
…
While an accused who loses conscious control and assaults another person after a night of substance abuse is undoubtedly morally blameworthy, s. 33.1 faces obvious difficulties. It does not discern, for example, between the accused and morally blameless individuals who voluntarily consume legal intoxicants for personal or medical purposes. It therefore cannot be said that, “in all cases” under s. 33.1, the intention to become intoxicated can be substituted for the intention to commit a violent offence. Moreover, even in the case of the accused who voluntarily ingested an illegal drug like magic mushrooms, proof of self-induced intoxication does not lead inexorably to the conclusion that the accused intended to or voluntarily committed aggravated assault in all cases.
In sum, the effect of s. 33.1 is to invite conviction even where a reasonable doubt remains about the voluntariness or the fault required to prove the violent offence, contrary to the presumption of innocence under s. 11(d).30
The SCC indicated that
given the patent risk that s. 33.1 may result in the conviction of an accused person who had no reason to believe that their voluntary intoxication would lead to a violent consequence … s. 33.1 fails at the proportionality step and thus cannot be saved under s. 1.31
The SCC determined that when Parliament enacted section 33.1, it sought first “to protect the victims of extremely intoxicated violence” and to hold “offenders accountable for the harm they cause as a result of their choice to self-intoxicate.” 32 The SCC found these objectives sufficiently pressing and substantial to warrant limiting the rights guaranteed in sections 7 and 11(d) of the Charter.
The SCC also found that there was a rational connection to the objective of section 33.1, but that the impairment of the rights protected by sections 7 and 11(d) were not minimal. It added that Parliament could have taken other means “to hold an extremely intoxicated person accountable for a violent crime when they chose to create the risk of harm by ingesting intoxicants.” 33 According to the SCC, “[s]ome of these options would be manifestly fairer to the accused while achieving some, if not all, of Parliament’s objectives.” 34 It retained two main options:
Lastly, the SCC also found that “the impact [of section 33.1] on the principles of fundamental justice is disproportionate to its overarching public benefits.” 37
Bill C‑28 has a single clause which amends section 33.1 of the Code.
Above all, it is important to note that section 33.1(3) of the Code remains unchanged: it provides that section 33.1 applies only to violent crimes, offences under either the Code or another Act of Parliament “that includ[e] as an element an assault or any other interference or threat of interference by a person with the bodily integrity of another person.”
The bill amends section 33.1(1) of the Code to stipulate that, subject to the two conditions set out in paragraphs 33.1(1)(a) and 33.1(1)(b), a person who commits a violent offence (referred to in section 33.1(3)) is deemed to have committed the offence, even if because of self-induced extreme intoxication, they lacked the general intent or voluntariness ordinarily required to commit it. The two conditions are as follows:
- all the other elements of the offence are present; and
- before they were in a state of extreme intoxication, [the person] departed markedly from the standard of care expected of a reasonable person in the circumstances with respect to the consumption of intoxicating substances.
As explained above, under current section 33.1(2) of the Code, to determine whether there has been a marked departure from the standard of care, it must be proven that a person committed a violent act while in a state of self-induced intoxication that rendered them unaware of or incapable of controlling their behaviour. This standard does not constitute criminal negligence, but rather simply “conditions of liability.” 38
The bill amends section 33.1(2) of the Code to establish a standard of criminal negligence. It explains how a court can determine whether a person departed markedly from the standard of care expected of a reasonable person within the meaning of new section 33.1(1)(b):
For the purposes of determining whether the person departed markedly from the standard of care, the court must consider the objective foreseeability of the risk that the consumption of the intoxicating substances could cause extreme intoxication and lead the person to harm another person. The court must, in making the determination, also consider all relevant circumstances, including anything that the person did to avoid the risk.
This newly established standard for criminal negligence appears consistent with the findings of the SCC in R. v. Brown. According to the SCC, one legislative avenue for Parliament was to establish a standard for criminal negligence that would require “proof that both of the risks of a loss of control and of the harm that follows were reasonably foreseeable.” 39 The SCC wrote that this option would have been more consistent with the rights set out in the Charter.
Lastly, the bill adds section 33.1(4) of the Code to define the term “extreme intoxication” used in sections 33.1(1) and 33.1(2) as “intoxication that renders a person unaware of, or incapable of consciously controlling, their behaviour.” As the Department of Justice explained:
The Supreme Court has recognized that alcohol alone will almost never lead to a state of extreme intoxication. An accused person has to prove they were in a state of extreme intoxication akin to automatism, which requires expert evidence at trial.40
Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years (a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year.In this case, the Crown must prove the accused’s intention to touch directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years. In addition, the Crown must prove that the accused’s acts were performed for sexual purpose. [ Return to text ]
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