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The Defence of Drunkenness

By Lavinia Inbar

Can drunkenness be a defence to an assault? The law in Canada has gone back and forth on this one. In the seventies, the Supreme Court severely limited the use of this defence, essentially eliminating it. Then, in the sexual assault case of R. v. Daviault, [1994] 3 S.C.R. 63, the Supreme Court of Canada said that limiting the defence in that way was unconstitutional and said that self-induced intoxication may be a defence in the extremely rare circumstances where the intoxication puts the person in a state akin to automatism. In response to the very negative public reaction to this case, the government amended the Criminal Code of Canada adding s. 33.1 which clearly prohibits the defence of self-induced intoxication for assaults, including sexual assault, with no exceptions. Section 33.1 provides as follows:

When defence not available

33.1 (1) It is not a defence to an offence referred to in subsection (3) that the accused, by reason of self-induced intoxication, lacked the general intent or the voluntariness required to commit the offence, where the accused departed markedly from the standard of care as described in subsection (2).

Criminal fault by reason of intoxication

(2) For the purposes of this section, a person departs markedly from the standard of reasonable care generally recognized in Canadian society and is thereby criminally at fault where the person, while in a state of self-induced intoxication that renders the person unaware of, or incapable of consciously controlling, their behaviour, voluntarily or involuntarily interferes or threatens to interfere with the bodily integrity of another person.


(3) This section applies in respect of an offence under this Act or any other Act of Parliament that includes as an element an assault or any other interference or threat of interference by a person with the bodily integrity of another person.

Note that this provision says that self-induced intoxication is not a defence where “general intent” is required to commit the crime. So self-induced intoxication may be a defence where “specific intent” is required, for example in a case of first-degree murder (but not manslaughter which is a general intent offence). Without going into a discussion about how you know if an offence is a specific or general intent offence, it suffices for our purposes to understand that assault, including sexual assault would be a general intent offence.

This legislated prohibition to the drunkenness defence has been the state of the law until recently when Ontario’s Court of Appeal declared that law unconstitutional. In deciding a pair of similar cases, the court stated that: this law “enables the conviction of individuals for acts they do not will.”

The law and this recent development regarding this law, applies not just or drunkenness, but also to other kinds of self-induced intoxication.

The Court of Appeal has struck down the convictions of two people convicted of offences in which this defence was denied. One person was acquitted and the other had his case sent back for a re-trial. In both cases the accuseds had been high on drugs. In the one case, the accused was a high school student who got high on magic mushrooms and stabbed and killed his father and badly injured his father’s partner. In the other case, the accused had tried to commit suicide by taking an overdose of a stop-smoking medication which caused him to believe that his elderly mother was an alien. He stabbed her but fortunately she survived. They both unsuccessfully raised the defence of automatism.

Automatism is a common law defence (so it is not found in the Criminal Code). It describes a situation in which the accused had been conscious in the sense that he was capable of the action to commit the crime, but had no voluntary control over the action. This defence failed for the two individuals because their automatism was caused by “self-induced intoxication.”

The Court of Appeal overturned the convictions because it found that s. 33.1 violated certain constitutional protections in the Charter of Rights and Freedoms (which is part of the Constitution of Canada). The sections of the Charter that were invoked were the right to life, liberty and security of the person (s. 7), and the right to the presumption of innocence (s. 11(d)). In Canadian constitutional law, if a law violates the Charter it can be “saved” if it can be justified under the limitations clause (s. 1) of the Charter. However, the court found that this law could not be saved under s. 1 and struck it down. The Court sent the case with the teenager back for a new trial and acquitted the other accused.

Although neither of these cases involved sexual assaults, it is feared by many that opening the door to this defence, even in such a limited way, will lead to more sexual assaults and more acquittals of those accused of sexual assault. However, others argue that because an accused would still have the difficult task of proving a state of automatism to raise this extreme intoxication defence, the defence would very rarely be used and would not create a flood of acquittals for sexual assaults.

Is the defence of self-induced intoxication back? No, not really. For one thing, in its present highly circumscribed form, it does look like it could only be used in such extreme cases of self-induced intoxication as to induce automatism. In other words, it is a defence that could only be used in the rarest of circumstances.

Is that the end of the story? No. The Crown has indicated that it will seek leave to appeal these decisions to the Supreme Court of Canada. So, until the Supreme Court weighs in, we won’t know the end of the story.

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