Liberals table bill responding to Supreme Court decision on ‘extreme intoxication’

Minister of Justice and Attorney General of Canada David Lametti rises during Question Period, Thursday, June 2, 2022 in Ottawa. Liberal Justice Minister David Lametti is expected to table a bill as early as Friday that would respond to a Supreme Court ruling to allow voluntary extreme intoxication as a defence for serious crimes.THE CANADIAN PRESS/Adrian Wyld

OTTAWA — The federal Liberals tabled a bill Friday that seeks to eliminate “self-induced extreme intoxication” as a legal defence for violent crimes, after the Supreme Court struck down a similar provision in May.

Bill C-28, introduced by Justice Minister David Lametti, would add new language to the Criminal Code that creates criminal liability when a person who commits a violent crime is “in a state of negligent self-induced extreme intoxication.”

For a person to be found liable for their actions under the drafted update of Section 33.1 in the code, prosecutors would need to establish that they were criminally negligent.

The court would need to consider whether a reasonable person in that situation could have foreseen the risk that ingesting intoxicating substances could “cause extreme intoxication and lead the person to harm another person.”

The specific circumstances of the case would factor into the analysis, such as the substance itself and the quantity that was consumed, the person’s state of mind at the time and anything they may have done to mitigate such a risk.

“Extreme intoxication” is defined in the bill as intoxication that renders a person unaware of, or incapable of consciously controlling, their behaviour.

It is not a presumed defence, meaning that the test would only apply if a defendant specifically raises it.

This has only ever happened a handful of times, Lametti said.

It would not apply to the vast majority of cases where drugs or alcohol are involved — and “almost never” in situations where only alcohol was consumed.

“This is not about being really drunk or really high,” he said, repeating several times: “Being drunk or high is not a defence for committing criminal acts like sexual assault.”

Marci Ien, the Liberal minister for women and gender equality and youth, told reporters the government has been increasingly concerned about online misinformation suggesting that the recent Supreme Court decision meant that being drunk could be a defence for sexual assault.

She cited social media posts with hundreds of thousands of likes and views, including one that suggested “rape is now legal if you’re intoxicated.”

Lametti said one of the motivations for closing the gap in the law so quickly was to address some of the rising fear and confusion around the decision.

“You don’t want someone to think, ‘Oh, I can have a few drinks and do whatever the blank I want,'” he quipped.

In its unanimous May ruling, the Supreme Court made it clear that being drunk will never get someone off the hook for a violent crime.

Justice Nicholas Kasirer wrote in the decision that under the previous wording of Section 33.1, convicting someone for how they behave in a state of automatism, or when they are too intoxicated to stay in control of themselves, violates principles of fundamental justice.

The wording had been added by the Liberal government of Jean Chrétien in 1995, in response to a 1994 Supreme Court decision that acquitted a man of sexual assault because he was blackout drunk at the time of the offence.

But it failed the constitutional test because a person could be convicted without the prosecution having to prove that they acted voluntarily or that they ever intended to commit a crime⁠ — even though a “guilty action” and a “guilty mind” must ordinarily be present for someone to be found criminally responsible.

On that basis, the court upheld two acquittals of men who committed violent acts after voluntarily consuming drugs, and ordered a new trial in a third, similar case.

Some groups expressed concern about the court ruling, with Kerri Anne Froc of the National Association of Women and the Law’s steering committee urging action to rectify a gap in the criminal justice system and protect women and children, often the victims of these crimes.

The court suggested Parliament could enact new legislation to update the language of the Criminal Code in such a way that “extremely intoxicated” people could still be held accountable for their violent crimes⁠.

Lametti’s office reacted with what he called “lightning speed,” consulting with stakeholders, court interveners and members of Parliament to come up with a solution that could get broad support.

Pam Hrick, the executive director and general counsel of the Women’s Legal Education and Action Fund, appeared alongside ministers at Friday’s news conference and praised the government’s “thoughtful, nuanced and constitutional response.”

Asked whether he expects the bill to be passed by unanimous motions before the House of Commons and Senate rise next week for a summer break, Lametti said he is optimistic.

“There is a point of agreement here, and I hope we can move this forward.”

The NDP’s justice critic, Randall Garrison, said in a statement that his party will push to have the bill passed quickly.

The Conservatives say they are still reviewing the legislation.

This report by The Canadian Press was first published June 17, 2022.

Marie-Danielle Smith, The Canadian Press