`Self-induced extreme intoxication' defence to be eliminated

The federal Liberals tabled a bill Friday that would eliminate “self-induced extreme intoxication” as a legal defence for violent crimes, after the Supreme Court struck down a similar provision last month while reviewing the case of a Calgary man and two others.

Bill C-28, introduced by Justice Minister David Lametti, would create new language in the Criminal Code that would hold individuals criminally responsible for violent crimes they committed while in a state of extreme intoxication by drugs or alcohol or both — if they ended up in that state through their own criminal negligence.

At the centre of the new legislation are three cases in recent years that fell under previous wording of Section 33.1 of the Criminal Code, including the acquittal of Matthew Brown, who broke into the home of a Mount Royal University professor and attacked her while he was high on magic mushrooms.

The Supreme Court upheld the acquittals of Brown and another man and ordered a new trial in a third, similar case. The Brown decision reversed a 2021 Alberta Court of Appeal ruling that struck down the former MRU hockey player's original acquittal.

Last month's unanimous Supreme Court decision found 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.

Doug King, a professor of justice studies at MRU, said the new legislation, if passed, would not allow Brown's case to be reopened, but would change how future cases are prosecuted.

“The frustrating thing was why didn't the government ... take proactive action and make the change which would have ultimately led to different decisions in (the three cases)?” said King.

For a person to be found criminally liable under the drafted update of Section 33.1, the court would need to consider the foreseeability of the risk that ingesting intoxicating substances could “cause extreme intoxication and lead the person to harm another person.”

In making that determination, the court would have to consider anything the person did to avoid such a risk.

The bill defines “extreme intoxication” 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.

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, Lametti said.

“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.”

Brown's trial heard he was attending a small drinking party in 2018 where he also consumed psilocybin, a restricted substance that can have hallucinatory effects.

He stripped naked and broke into the nearby home of Janet Hamnett, who was assaulted and suffered life-altering injuries to her hands.

Marci Ien, the Liberal minister for women and gender equality and youth, told reporters the government has been increasingly concerned about online misinformation suggesting the recent Supreme Court decision meant 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.”

King said he expects the legislation to receive all-party support as Section 33.1 has been criticized since it was installed by the Chretien government in the mid1990s.

Being drunk or high is not a defence for committing criminal acts like sexual assault.