Extreme intoxication is not morally blameless

Section 33.1 of the Criminal Code says that self-induced intoxication which renders a person unaware of or incapable of controlling their behaviour is not a defence where the person is charged with an offence such as sexual assault or any other offence involving the bodily integrity of another person. Various Courts have considered whether this section is constitutional. The decision in R v. SN, 2012 NUCJ 02 upholds the validity of the section, in large part of the basis that someone who drinks themselves into a state of extreme intoxication cannot be seen as morally blameless:

[109] In my view, reasonable people do not agree that a person who drinks himself or herself to a stupor is morally innocent, at all. Reasonable people know as a matter of common sense and life experience that there is at least a connection between intoxication and violence. The Preamble to s. 33.1 enunciates a clear reflection of this common sense notion.

[110] Similarly, in my view, reasonable people support the "Scots Law" approach that intoxication, even extreme intoxication, should not excuse criminal liability, and that perpetrators of drunken violence should be held accountable. The Preamble to s. 33.1 is thus a clear reflection of what most reasonable people think in this regard.

[111] In my view, reasonable people do not agree with the prevailing view in Daviault that the criminal mind and the criminal act must be precisely contemporaneous, but rather with the more flexible dissenting opinion that people who drink themselves to a stupor possess a continuing blameworthy state of mind for subsequent violence and should not be considered morally innocent.

[112] In my view Parliament has, both in the Preamble to s. 33.1 and in the statutory provision itself, set out a clear "standard of care" which attempts to bridge the gap, conceptually, between legal theory and public expectation respecting criminal liability. [Grant, n 2, at para 50 ].

[113] I acknowledge that the notion of moral blameworthiness can be problematic. For example, one can sympathize with the high school senior who, never having had a drink, achieves an unexpected and extreme state of intoxication at the grad dance after consuming a moderate amount of alcohol. Perhaps a flexible approach to the question of what constitutes "self-induced" intoxication might be appropriate in such a case. On the other hand, there would appear to be less sympathy for the seasoned alcoholic who believes that they can control the amount they drink, but is mistaken.

[114] Finally, there is the prospect that the defence of extreme intoxication is a dodgy scientific proposition: that intoxication alone can never cause automatism, and, for example, that an alcoholic "black out" is simply mere loss of memory. There was considerable forensic testimony before the Standing Committee considering Bill C-72 (the precursor to s. 33.1) which called into question the underlying premise of extreme intoxication as a defence (Standing Committee).

[115] Parliament could, of course, have enacted s. 33.1 regardless of whether it accepted any forensic opinion which called into question the empirical validity of extreme intoxication as a defence. I am also aware that this is something which, properly, is a trial issue and not to be considered by me at this stage.

[116] It is clear, however, from both the Preamble and the plain wording of s. 33.1, Parliament was of the view that those who perpetrate drunken violence do not exactly "come to equity with clean hands by pleading 'extreme' intoxication as relief."

[117] I am of the view that the salutary benefits of s. 33.1 far outweigh any deleterious effects. Accordingly, s. 33.1 meets this proportionality requirement of the Oakes analysis.