TORONTO, June 17, 2022 – The Federal Government’s response to the Supreme Court of Canada (SCC) decisions on extreme intoxication is thoughtful, nuanced, and constitutional, says the Women’s Legal Education and Action Fund (LEAF).
Last month, the Supreme Court struck down section 33.1 of the Criminal Code in its decisions on the Sullivan and Chan, and Brown cases. Under this provision, accused persons were not allowed to use this defence to avoid criminal responsibility for certain violent offences, including sexual assault. LEAF intervened in these cases to advocate for the rights of survivors and victims of sexual violence, who are disproportionately women, girls, trans and non-binary people.
In its decisions, the Supreme Court reiterated that being drunk or high is not a defence in sexual assault cases, and never has been. Still, many survivors expressed concern with the narrow gap the decisions created. The court laid out potential constitutionally compliant options for Parliament to consider in addressing this gap.
In response, the Federal Government introduced Criminal Code amendments in Bill C-28. With the proposed amendments, if adopted by Parliament, people who negligently reach this state of self-induced extreme intoxication and commit violent crimes can be held criminally responsible. Criminal negligence is defined as not taking sufficient care to avoid a reasonably foreseeable risk of losing control and acting violently.
LEAF supports this thoughtful, nuanced, and constitutional legislation to address the narrow gap resulting from the SCC decisions.
“If adopted by Parliament, we will be looking to the courts to apply this legislation in a similarly thoughtful way,” says Pam Hrick, Executive Director & General Counsel at LEAF. “Courts will need to take into consideration the circumstances of accused persons who are particularly marginalized and who we know the criminal law disproportionately targets, including Black, Indigenous, and racialized people.”
If Bill C-28 becomes law, training for justice system participants that accurately reflects the provision’s meaning and its application will be critical. Even with this legislation, LEAF stresses that survivors need more support, both within the criminal justice system and beyond.
“While we welcome the government’s response to give effect to the rights of women and children, we acknowledge at the same time that the criminal justice system too often fails and re-traumatizes survivors of sexual violence,” says Hrick.
In addition to improving existing responses to sexual violence, LEAF emphasizes, governments must explore alternative justice responses such as transformative justice, and work to see an end to gender-based violence altogether. LEAF calls on the federal, provincial, and territorial governments to provide funding for alternative justice responses to sexual violence, and to take urgent, coordinated action to implement the Roadmap for a National Action Plan on Violence Against Women and Gender-Based Violence.
The Women’s Legal Education and Action Fund (LEAF) is a national not-for-profit that works to advance the equality rights of women, girls, trans, and non-binary people in Canada through litigation, law reform, and public legal education. Since 1985, LEAF has intervened in more than 100 cases that have helped shape the Canadian Charter of Rights and Freedoms. To find out more, visit www.leaf.ca.
Executive Director & General Counsel, LEAF