May 13, 2022 – The Supreme Court of Canada has clearly stated that drunkenness without automatism cannot be used as a defence in sexual assault cases, says the Women’s Legal Education and Action Fund (LEAF).
Today, the Court released its decisions in R. v. Sullivan and R. v. Chan, and R. v. Brown. These cases examined the defence of “self-induced extreme intoxication” under Canadian criminal law.
Under s. 33.1 of the Criminal Code, accused persons were not allowed to use this defence to avoid criminal responsibility for certain violent offences, including sexual assault. “Self-induced extreme intoxication” is different from being very drunk, very high, or blacking out – it requires a person to be so intoxicated that their actions are not voluntary or something they can control.
The Court held that section 33.1 violated the constitutional rights of accused persons, and struck down the provision. The Court clearly stated, however, that this does not mean that drunkenness can be used as a defence to sexual assault charges.
As the Court explained: “It thus bears emphasizing that Mr. Brown was not simply drunk or high. To be plain: it is the law in Canada that intoxication short of automatism is not a defence to violent crimes of general intent in this country.”
“Drunkenness has never been, and is not now, a defence to sexual assault,” says Kat Owens, Project Director at LEAF. “We are pleased to see the Supreme Court clearly and specifically spell that out.”
LEAF intervened in these cases to advocate for the equality rights of survivors of sexual and physical violence. Women and children face disproportionate levels of violence, including sexual violence. The Court agreed with LEAF that “these rights are intensely important and must be given full consideration under the Charter analysis.”
“Regardless of today’s ruling, we know that the criminal justice system too often fails and retraumatizes survivors of sexual violence,” says Owens. “We need to improve existing responses to sexual violence, while exploring alternative responses and working to prevent gender-based violence.”
LEAF stresses that training for justice system participants must accurately reflect the meaning of this decision and its limited application. LEAF further calls on the federal, provincial, and territorial governments to provide funding for alternative justice responses to sexual violence, and to take steps 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.
LEAF is grateful to Megan Stephens and Lara Kinkartz for their pro bono representation. LEAF is also grateful to the members of the case committee that helped to shape this intervention: Karen Bellehumeur, Rosemary Cairns Way, Frances Chapman, Alanna Courtright, Daphne Gilbert, Farrah Khan, and Marie Manikis.
Project Director, LEAF
Co-counsel for LEAF