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Supreme Court of Canada in Ottawa on May 11.Sean Kilpatrick/The Canadian Press

Extreme intoxication would not be a defence to sexual assault or other violent acts if an accused should have foreseen the risk they would lose control and become violent, under a new government bill introduced Friday.

The bill is an extraordinarily swift response to a Supreme Court ruling from just a month ago that restored the defence of intoxication so extreme it is akin to psychosis, in crimes of violence.

In that ruling, the court unanimously struck down a 1995 federal law banning the use of extreme intoxication akin to psychosis as a defence in cases of violence. The court said the law was unconstitutional because it did not include a requirement that the loss of control and harm to others be foreseeable. It said without such a requirement, the law criminalized involuntary conduct and undermined the presumption of innocence.

But the court also said that an alternative would be to use the idea of criminal negligence – that is, of a marked departure from standards of expected behaviour, in the use of drugs or alcohol, or both – to limit uses of the defence and hold individuals accountable for their actions.

The Liberal government has taken the court up on its suggestion. Its bill, which still must be debated and approved by Parliament, defines self-induced, extreme intoxication as rendering an individual unaware of, or incapable of controlling, their behaviour.

If, before an individual became extremely intoxicated, they “departed markedly from the standard of care expected of a reasonable person” in the consumption of intoxication substances, the law says they may lose the defence. The law tells judges to consider anything the person did to avoid the risk, and all other relevant circumstances.

“Violence committed by people who are intoxicated has serious and devastating impacts,” Justice Minister David Lametti said in a statement. “This is sadly true for some of the most at-risk in our society – women, children, and Indigenous women, girls and 2SLGBTQQIA+ persons.”

Lawyer Sean Fagan represented one of three men in Alberta and Ontario whose cases of extreme intoxication prompted the Supreme Court to strike down the law that banned the defence. His client, Matthew Winston Brown, had no criminal record and no history of mental illness when, after using magic mushrooms and alcohol, he ran down a street naked on a Calgary winter night and invaded two homes, assaulting a woman. The Supreme Court ordered his acquittal.

Mr. Fagan said that while the government had tried to fix the constitutional problems identified by the Supreme Court, “you can’t make a silk purse from a sow’s ear … on first read, it will be entirely ineffective.” He said prosecutors will have to prove two very difficult things: that the accused should have known the consumption could result in becoming an automaton; and that the accused should have known their intoxication could lead to violence.

“There is little scientific support for a correlation between the consumption of hallucinogens and violence, so the Crown will have an uphill battle,” he said.

He added: “There is an argument that the new law could result in individuals consuming hallucinogens in a more responsible manner. Practically speaking, however, I doubt any hallucinogen users expect to become violent when they decide to buy the ticket and take the ride.”

Pam Hrick, executive director and general counsel at Women’s Legal Education and Action Fund called the bill a thoughtful, nuanced response that fills in a gap in the law created by the Supreme Court. “It addresses the issue of accountability for extreme intoxication in circumstances where people are acting negligently. It also directs the court to consider all of the relevant circumstances of an accused person.”

Michelle Lawrence, who teaches law at the University of Victoria, said the government has followed the Supreme Court’s road map, but added she is concerned substance users who have untreated mental disorders will find themselves steered into corrections, rather than the mental-health system.

The 1995 law was itself a prompt response to a 1994 Supreme Court ruling – one of the most controversial in its post-1982 history under the Charter of Rights – which allowed the defence to be argued in the sexual assault of a woman in a wheelchair.

Randall Garrison, justice critic for the NDP, praised the government for responding so soon to last month’s Supreme Court ruling. “Extreme intoxication should never be an excuse for domestic violence or sexual assault,” he said.

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