Parliament can fix Criminal Code
On Friday, the Supreme Court of Canada found section 33.1 of the Criminal Code unconstitutional. The provision was enacted in response to the court’s controversial 1994 Daviault decision, which allowed for a defence of “extreme intoxication” to answer a charge of sexual assault.
Parliament’s response circumscribed the court’s defence by denying it in cases of self-induced intoxication when the offence involved an assault or interference with the bodily integrity of another person and where the accused claims to have been incapable of consciously controlling their behaviour.
Over the course of section 33.1’s decades-long history, lower courts have split on its constitutionality. Recent cases involving psychotropic drugs (instead of alcohol in the 1994 case) have finally forced the Supreme Court to make its determination. The court found section 33.1 violates the principle that one should not be punished criminally for involuntary behaviour and Parliament’s attempt to do so could not be justified as a reasonable limit.
What now? Many Canadians remain uncomfortable with the idea that even rare “extreme intoxication” — to the point where it might be considered “akin to automatism,” as the court describes it — could be used as a defence to heinous crimes when the accused put themselves in such a state.
One possibility suggested by Justice Peter Cory way back in the original Daviault case is for Parliament to make a stand-alone offence that would criminalize extreme self-induced intoxication itself. If the blame lies in getting so out-of-control drunk or high, the theory goes, then the criminal punishment should be proportional and directly connected to that fault. Such an approach would likely not vary the sentence according to offences subsequently committed and would amount to a “drunkenness discount” for many offenders. It isn’t hard to see why Parliament preferred section 33.1 to that approach.
The court’s latest decision leaves it open for Parliament to re-enact the original section 33.1 using the Charter’s notwithstanding clause, which it would have to renew every five years, but Justice Nicholas Kasirer’s decision points toward another potential solution. Although Kasirer was “mindful that it is not the role of the courts to set social policy, much less draft legislation for Parliament,” he was clear that a more narrowly tailored section 33.1 could meet constitutional muster.
As it currently stood, section 33.1 might capture “the sudden and unexpected onset of involuntariness” brought on by self-induced intoxication; Kasirer offers the example of a “patient who experiences an overwhelming and unexpected reaction to a prescribed pain medication and injures another,” even if the patient just wanted pain relief and when it was “beyond the contemplation of a reasonable person to foresee a loss of control or awareness of their behaviour.”
Section 33.1 could be fixed, in other words, by restricting it to cases where the accused knows or ought to have known that a “loss of control and bodily harm were both reasonably foreseeable at the time of intoxication.” This restriction will make it harder to obtain a conviction, but it may reasonably reconcile the goal of making self-induced intoxicated offenders accountable for their actions, but only to the extent they were blameworthy for their reckless decision to risk other people’s safety.
In truth, Kasirer is probably right that section 33.1 was overly broad and caught behaviour Parliament might not have intended, but it is also possible the standard Kasirer suggests is too onerous (especially since medical experts may be reluctant to testify that the use of a given drug could foreseeably lead to violence).
A new, carefully designed legislative standard would be to everyone’s benefit. Parliament could use this opportunity to further investigate and perhaps endorse the scientific consensus that alcohol alone cannot achieve the effect the Daviault court thought possible, and it might explicitly identify other drugs that could plausibly leave one in a state akin to automatism. Such clarity would provide welcome guidance to future courts.
If Parliament were to thoughtfully pursue the option Kasirer has invited, it could be a remarkable instance where the dialogue between the courts and the legislature ultimately resulted in better public policy.
Parliament could use this opportunity to further investigate and perhaps endorse the scientific consensus that alcohol alone cannot achieve the effect the Daviault court thought possible, or identify other drugs that could plausibly leave one in a state akin to automatism