Changes to section 33.1 of the Criminal Code on self-induced extreme intoxication

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On June 23, 2022, amendments to the Criminal Code relating to self-induced extreme intoxication received Royal Assent and came into force. The amendments address extreme intoxication and aim to improve the criminal justice system, support victims and survivors of crime, hold offenders to account, while respecting Charter rights.

On June 17, 2022, the Minister of Justice and Attorney General of Canada introduced Bill C-28 to amend the Criminal Code to respond to the Supreme Court of Canada (SCC) May 13, 2022 decisions on the defence of extreme intoxication (R v. Brown and R v. Sullivan and Chan). The SCC ruled that the section of the Criminal Code that prevented the use of the extreme intoxication defence for most crimes of violence was unconstitutional.

These changes to the Criminal Code close the gap in the law following the SCC decisions by ensuring that individuals who voluntarily consume intoxicants in a criminally negligent manner, become extremely intoxicated, lose control and harm others are held criminally responsible. Negligence in this context means a person has not taken enough care to avoid a reasonably foreseeable risk of a violent loss of control.

The amendments promote public safety, particularly for those who are at risk of facing violence, such as women and children, while respecting Charter rights. They also support the Government of Canada’s broader commitment to increase access to justice for victims and survivors of crime and improve confidence in the criminal justice system.

What are the amendments to the Criminal Code?

These amendments re-enact and amend section 33.1 of the Criminal Code. The new provision ensures that an individual who harms another person while in a state of extreme intoxication will be held criminally responsible for their actions if there was a foreseeable risk that they could violently lose control over their actions when they consumed the intoxicants and they failed to take enough care to prevent that risk.

What is extreme intoxication?

Extreme intoxication, akin to automatism, is a state where a person is unaware of or has no voluntary control over their actions as a result of intoxication. The Supreme Court has recognized that alcohol alone will almost never lead to a state of extreme intoxication.

An accused person has to prove they were in a state of extreme intoxication akin to automatism, which requires expert evidence at trial.

What is the impact of the SCC decisions?

The Supreme Court’s decisions left a gap in the law that these amendments address. While such cases would be rare, the effect of the SCC decisions was that individuals who negligently self-intoxicate to an extreme level, lose control over their actions and harm others could have escaped criminal consequences. This was the case even in situations where a reasonable person should have known that they could lose control and harm others, and the person made no effort to minimize that risk.

What was the previous Criminal Code provision relating to the defence of extreme intoxication?

Being drunk or high short of extreme intoxication is never a defence where a person commits crimes such as assault, sexual assault, and manslaughter.

The previous version of section 33.1 of the Criminal Code, struck down by the SCC in May 2022, dealt with violent offences committed while in a state of self-induced extreme intoxication. The SCC found that previous section 33.1 denied the accused the availability of using self-induced extreme intoxication as a defence for violent offences like assault and sexual assault, even where a reasonable person would not have foreseen the risk of a violent loss of control. In other words, the SCC concluded that it unfairly held people criminally responsible for actions they committed while in a state of automatism that they could not have reasonably predicted when they chose to consume intoxicants.

What did the Supreme Court of Canada decide in R v. Brown and R v. Sullivan and Chan?

The SCC found the previous version of section 33.1 was unconstitutional because it violated sections 7 (the right not to be deprived of liberty except in accordance with a principle of fundamental justice) and 11(d) (the presumption of innocence) of the Charter. The SCC found that previous section 33.1 denied the accused the availability of using self-induced intoxication as a defence for violent offences like assault and sexual assault, even where a reasonable person would not have foreseen the risk of a violent loss of control. Bill C-28 amended the Criminal Code to replace the old provision with a new version of section 33.1 that will protect victims, hold offenders accountable and respects the Charter.

Did the Supreme Court of Canada decide that someone could use drunkenness or being high alone as a defence to assault someone?

No. The SCC was clear that drunkenness is not a defence for committing criminal acts, including assault and sexual assault. The SCC’s decisions do not apply to the vast majority of cases involving a person who commits a criminal offence while intoxicated.

The SCC ruling applies only in the rare instance where a person chooses to ingest substances that cause intoxication so extreme as to result in a state of automatism and then harms another person.

The SCC also made clear that alcohol alone will almost never result in a state of extreme intoxication akin to automatism.