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The Supreme Court of Canada in Ottawa on June 17.Justin Tang/The Canadian Press

Kerri A. Froc is an associate professor at the Faculty of Law, University of New Brunswick. Elizabeth A. Sheehy is a professor emerita of the Faculty of Law, University of Ottawa. She is a leading scholar on sexual assault law in Canada.

Three significant cases have arrived for consideration at the Supreme Court of Canada, each challenging Section 33.1 of the Criminal Code. That section, added by the federal government in 1995, addresses the “fault” element for crimes of violence. The section says that if a person voluntarily consumes alcohol or other intoxicants to the extent that they lose conscious control of their actions and commit a crime of violence, they are accountable for that crime, because they have failed “markedly” to meet reasonable community standards.

The Supreme Court will take some time to consider the cases, heard in the fall of 2021 – as well it should. If Section 33.1 is removed, it would make the “extreme intoxication” defence available in criminal cases moving ahead, and that would make realizing women’s right to equality and equal right to personal security even more remote.

In 2015, Thomas Chan attacked his father and stepmother with a knife while under the influence of a significant amount of psychedelics, leading to the death of his father and convictions for manslaughter and aggravated assault. The decision in his case will be made alongside that of David Sullivan, who claimed that his consumption of a massive dose of the anti-depression drug Wellbutrin was a suicide attempt. Instead, he fell into a psychotic episode, culminating in the stabbing of his mother, who survived. In those two trials, as well as that of Matthew Brown, who was high on magic mushrooms and drunk on alcohol when he severely beat a neighbour with a broom handle, lawyers wanted to argue that the accused could not be convicted because they were in a state of “automatism” from their consumption of drugs and alcohol and did not intend to hurt anyone. But Section 33.1 prevented them from deploying the defence of extreme intoxication.

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In the Supreme Court’s 1994 decision in R. v. Daviault, which prompted the federal government to enact Section 33.1, some judges expressed concern about people – who are almost always men – being convicted of violent crimes while extremely intoxicated. They referenced the principle under Section 7 of the Charter that those who are “morally innocent” – because they acted unconsciously – should not be convicted of a crime. Many criminal defence lawyers and organizations have also argued that women need not worry about the availability of the extreme intoxication defence if Section 33.1 were to be removed, because it would be used rarely.

But in our recently published article, we found 62 attempts to raise this defence since Section 33.1 was enacted. We also found that the defence was deeply gendered: All but four of the perpetrators were men, and 31 cases involved sexual assault or intimate partner violence – crimes that occur because of women’s inequality and serve to reinforce their inequality. Add to this the 18 cases where women were victims as neighbours, mothers, friends and women just out in the world, and we see that women were victimized in 49 of the 62 cases. While there have been few successful extreme intoxication defences because of Section 33.1, we fear many acquittals if it is struck down by Canada’s highest court in the new year.

Continuing legal conversations about “moral innocence” have little to say about other Charter rights: namely, a woman’s right to liberty, personal security and equality, which suffer when men choose to become intoxicated and then commit violence against them with impunity. Canada’s “equal rights” guarantee, Section 28 of the Charter, should mean that women have equal rights to fairness and justice, and that any claim to “moral innocence” based on extreme intoxication leading to loss of control must also be read in light of women’s rights, including the right to be safe wherever we are, in public and private spaces.

It may take several months for the Supreme Court to rule on whether to unleash the “extreme intoxication” defence. But when that decision comes, the Court must ensure that women’s equal rights are at the forefront, and not last among equals.

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