Revisiting the bedrock of moral fault

“It actually really frightens me as to what the consequences will be for women and girls (if it is struck down),” says Elizabeth Sheehy, professor emerita at the University of Ottawa’s Faculty of Law and leading scholar on sexual assault law in Canada. “Violence against women perpetrated by extremely intoxicated men, be it by drugs, alcohol or some combination, will be decriminalized, effectively.”

Section 33.1 was enacted by Parliament in 1995 in the wake of the Supreme Court’s contentious decision a year earlier in R v Daviault, which allowed for the defense of extreme intoxication in a case that involved the sexual assault of a 65-year-old woman in a wheelchair. The provision disallows the defence of voluntary extreme intoxication to the point of automatism in violent crimes. 

In the fall, the top court heard three cases that challenged section 33.1. In two of them, R v Sullivan and R v Chan, section 33.1 was deemed unconstitutional by the Ontario Court of Appeal for violating section 7. In R v Brown, however, the Alberta Court of Appeal found it didn’t violate section 7 or 11(d), and even if it did, the minority said it would be saved by section 1.

Kerri Froc, an associate professor of law at the University of New Brunswick and chair of the National Association of Women in Law, says there are other Charter provisions that must be considered, specifically the equality rights set out in section 15, as well as section 28, which requires that Charter rights and freedoms be implemented without discrimination between the sexes. 

In a recent paper she co-authored with Sheehy, they argue that making the extreme intoxication defense available would make realizing women’s right to equality and equal right to personal security even more remote.

The section 7 debate references moral innocence and an insistence that those who act unconsciously should not be convicted of a crime. But Froc says a concept like moral innocence “has to be interpreted in a way that doesn’t prioritize men’s rights over women’s rights, or prioritize men over women.” When viewed through the gender lens required by section 28, she says 33.1 doesn’t offend section 7 or 11(d). And even if some deem it to, it can be saved by section 1.

“It’s baked right into the text that judges aren’t to value men’s rights over women’s. They’re to give them equal consideration and respect.”

The data shows intoxicated violence is gendered in terms of who commits it and who bears the consequences. As part of their research, Froc and Sheehy found 62 attempts to use the defense since 33.1 was enacted. All but four perpetrators were men, while women were victimized in 49 of the 62 cases. 

Most attempts to invoke the defence failed, but they fear that will change if 33.1 is struck down. With an entire expert industry waiting in the wings, they say it’s possible men’s assaults on women may become untouchable by the criminal justice system when they can show they were extremely intoxicated, and the killing of women, under those circumstances, could potentially be de-criminalized. 

“It’s a message of impunity,” Froc says. “We call it the drunk discount.”

Tony Paisana, a lawyer at Peck and Company in Vancouver and a member of the CBA Criminal Justice Law Section executive, disagrees. He doesn’t see the floodgates opening and gendered violence going unpunished and unprosecuted if 33.1 is deemed unconstitutional.

“It is really hard to hard to underestimate or over-exaggerate the level of evidentiary basis you need to establish to make out automatism,” he says. “In the cut and thrust of these public debates, people lose sight of the fact that this is not an easy defence. It is an exceptionally difficult defense.”

And not one that can be advanced solely on the word of the accused. 

“You have to show that you were so intoxicated that medically you were not acting voluntarily. The number of cases where you will be able to successfully advance that defense are miniscule.” 

Paisana says while there is no question that intoxicated violence disproportionately affects women and children, there is conflation of the problem of intoxicated violence against the issue in 33.1, which is whether someone who reaches the rare and exceptional state of automatism induced by extreme self-intoxication should be afforded a defense. He says the very narrow nature of the question does not accord with the broad-based concerns people advocate for.

“Just because you have voluntarily consumed significant amounts of an intoxicant does not mean you are willing, wanting or motivated to commit (violent) offences,” he says. “It is the cornerstone of criminal law policy that you only punish those who commit voluntary and morally blameworthy acts.” 

There were strong indications from the hearing that the top court is poised to strike down 33.1, which has people considering possible alternatives. These include incorporating charges of accidental or intoxicated violence and sexual assault into the Criminal Code. Froc says to have that on the books would be a denigration of women’s dignity.

“That suggests ‘oops,’ we committed violence. That would really downgrade sexual assault even more than it already is.”

Sheehy says that would allow guilty pleas to these as included offences, rather than having an accused go to trial to prove their extreme intoxication defense. If intoxicated sexual assault is an included offense, there will be a premium on pleading guilty to that to avoid the greater charge. 

“It’s a dire picture, really,” she says, noting having 33.1 struck down would also be quite a blow to Parliament and its authority to step in and legislate. 

“Really, what the court would be saying is: ‘We know better than you. We will be the arbiters of the appropriate response.’”

Paisana says 33.1 is already so narrowly defined, it’s hard to imagine how Parliament would go beyond that to satisfy what the court might have to say in striking it down.

“I really do think it’s the end of the road one way or another for this debate, at least on this narrow front.”