Good afternoon, and thank you for inviting me to speak to the amendment to section 33.1 of the Criminal Code.
My main point is that the defence of extreme intoxication will be invoked most frequently for crimes of male violence against women, with consequential effects for the reporting, policing, and prosecution of these crimes. If you examine the evidence in Brown and Chan, as examples, you will see that the new law will be largely incapable of limiting the extreme intoxication defence.
In the 12 months between the release of the Daviault decision and the enactment of the original section 33.1, the defence was advanced at least 30 times in reported cases, and they represent the tip of the iceberg. Almost half, 12 of these cases, involved clear violence against women: six sexual assaults, five spousal assaults, and the murder of a woman in the sex trade. Another two involved attacks on women. One man brutally beat his mother, and another attacked a woman in a nightclub. The majority of these claims were rejected for want of proof, but of the six cases where the defence succeeded, four were spousal assault cases.
Advocates on behalf of women who experience men’s violence readily understood that the extreme intoxication defence seamlessly colludes with narratives around violence against women that suggest that it is never men’s fault, but rather women’s fault, or somehow an agentless crime that is simply an inevitable feature of life.
Had section 33.1 not been enacted in 1995, we might have seen at least 30 reported cases a year of attempts to use this defence, and over 26 years, that would have been a minimum of 780 cases. The original section 33.1 put a near halt to this defence, but, even so, in that 26-year period, we found 86 cases where section 33.1 was mentioned, either to consider its constitutionality, or at least as one reason for rejecting an intoxication defence.
While one author reports that only four could have succeeded, because most failed the Daviault proof standard, that doesn't account for the fact that section 33.1 barred the defence, such that lawyers could hardly have been expected to invest in the resources required to both launch a constitutional challenge and substantiate the defence with expert evidence.
Of the 86 cases, 35 involved sexual assault, and another five involved men who attacked their current or former partners. Beyond those 40 cases of clear violence against women, there were another 23 cases where women were victimized, either as the sole target of the accused's violence, or as another victim in addition to male victims. Altogether, 63 of 86 cases involved female victims. Of the perpetrators, 80 were men and six were women. These numbers bear up even in the three cases before the Supreme Court of Canada in Brown, Sullivan, and Chan: three male perpetrators, three female victims, and one male victim.
Although we cannot predict how often the extreme intoxication defence will succeed, the harms to women extend to men’s attempts to invoke this defence. There's a serious risk that women will be deterred from reporting these crimes where perpetrators are intoxicated, because they will not be in a position to assess whether an extremely out-of-it perpetrator can be held accountable.
Further, the trauma caused to complainants by lengthened trials based on the extreme intoxication defence being advanced, the resulting diminished confidence of women in the justice system, as well as the wasted judicial and Crown resources, all must be considered as negative implications of this now unleashed defence.
Police and prosecutors will need to account for the extreme intoxication defence in their charging and prosecutorial decisions. It may also have an impact on cases involving lower levels of intoxication. Of course, currently, anything short of extreme intoxication is no defence to crimes of general intent, like sexual assault and manslaughter, but when the Crown or police are deciding whether to lay charges, they do not know exactly how intoxicated the accused was. They may not have solid evidence about whether that intoxication crossed the line to extreme intoxication. That evidence is uniquely in the hands of the accused. The Crown has no access to it unless they were able to test his blood immediately after the occurrence, which is rare.
They know that these trials are going to require expert evidence and be resource-intensive. This could lead to charges not being laid where a high level of intoxication is involved, particularly in provinces like B.C., where the charge approval standard is substantial likelihood of conviction.
In turn, we will have no way to track the impact of the extreme intoxication defence on crimes of violence against women.