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Why the Supreme Court of Canada ruling on ‘extreme intoxication’ is a setback for women

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The Supreme Court of Canada decisions in R v Brown and R v Sullivan and Chan, released on Friday, mark a sad day for Canadian women. The court struck down Criminal Code section 33.1, enacted to promote the “equal participation of women and children in society” and their entitlement to “full protection of the rights guaranteed under (sections) 7, 11, 15 and 28.”

Since 1995, section 33.1 has precluded those accused of crimes of violence, committed overwhelmingly by men and disproportionately against women, from being acquitted on the basis of their “extreme intoxication.”

The court ruled the section violates the constitutional rights of accused persons by permitting conviction where the accused voluntarily (meaning of their own free will; they were not drugged or forced to become intoxicated) became extremely intoxicated to the point that they are in a state akin to automatism. Such a state means the accused’s acts, despite willingly becoming intoxicated, are physically involuntary and without the necessary mental fault required to be held accountable in criminal law.

To presume guilt by denying access to the extreme intoxication defence was said to violate the accuseds’ rights under section 7 (liberty and the right not to be convicted if “morally innocent”) and section 11(d) (the presumption of innocence).

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Our study of reported cases shows those impacted by the court’s decisions will primarily be women who survive crimes of male violence and the families of those who do not survive. Almost all of the perpetrators relying on this defence were men and a large majority of the victims were women.

Although the court cast doubt on whether this defence could be successful based on alcohol intoxication, it also said it would be “inappropriate here to foreclose a finding … through any intoxicant taken alone” if an accused person can find an expert willing to support it.

Beyond the immediate impact of unleashing the extreme intoxication defence, the decisions have serious implications for Parliament’s legislative efforts to protect women from male violence. The court explicitly declared that women’s rights — to liberty and security of the person under section 7, to equality under section 15, and to section 28’s promise that despite anything else in the Charter, “the rights and freedoms referred to in it are guaranteed equally to male and female persons” — are not to be considered at this stage of assessing whether an accused person’s rights have been violated.

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Rather, the court stated that women’s “equality, dignity and security interests … are best considered under section 1 [of the Charter]” where courts decide whether constitutional violations can be nonetheless upheld as “demonstrably justifiable in a free and democratic society.”

Not only does this placement of women’s rights suggest that they are mere societal interests to be considered in balancing the seriousness of constitutional infringements against the beneficial effects of a law, but it also virtually guarantees that women’s rights will never prevail. The Supreme Court has never upheld a section 7 violation using section 1.

After the 1994 decision in “Daviault” overturned the conviction of a man who, extremely intoxicated by alcohol, sexually assaulted an elderly disabled woman, public outrage resulted in then-justice Minister Allan Rock introducing section 33.1. Parliament’s explicit justification for section 33.1 was to protect the rights of women and children.

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In reaching its decisions in Friday’s cases, the Supreme Court acknowledged that Parliament has an interest in responding with new legislation to protect those victimized by extremely intoxicated violence. It also acknowledged that convicting those committing violence of a new crime of “criminal intoxication” would not meaningfully hold offenders to account for the full extent of the harm they caused, allowing them to “benefit from what [has been described] as a ‘drunkenness discount.’”

We can only hope that Justice Minister David Lametti will show the same courage as Rock and that our self-described “feminist” government will revise the law as recommended by the court, taking advice from advocates for women’s equality and affirming women as full rights bearers in Canadian society.

Elizabeth Sheehy is professor emerita at the University of Ottawa Faculty of Law. Isabel Grant is a professor at the Peter A. Allard School of Law at the University of British Columbia. Kerri A. Froc is an associate professor at the University of New Brunswick Faculty of Law.

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