When the Ontario Court of Appeal upheld the criminal defence of extreme intoxication this summer, the public backlash was swift and withering. Ontario NDP Leader Andrea Horwath urged the Attorney General to appeal the decision, stating “we should be supporting survivors of sexual assault and violent crime, not making it even harder.” Professors Elizabeth Sheehy and Isabel Grant condemned the decision in this magazine as “yet another blow to women.” Legal historian Constance Backhouse stressed the notorious “linkages between alcohol and the abuse of women,” asking, “What will the ruling mean for the vast number of women sexually assaulted by intoxicated men?”

Given the outcry, it may surprise some that neither R. v. Sullivan nor R. v. Chan, the cases dealt with in the court of appeal decision, involved alcohol, sexual assault, or intimate partner violence. Sullivan over-consumed prescription medication in a failed suicide attempt. In the psychotic episode that followed, he stabbed his mother in fear she was an alien. Chan experienced a psychotic break after consuming “magic mushrooms.” He grievously wounded his father’s partner and fatally stabbed his father, believing he was the devil.

The backlash was in fact highly predictable in troubling ways. Critics who insisted that the law should hold accountable those who choose to become intoxicated and then inflict harm on others revived centuries-old concerns about the effects of male intoxication on women and children. On the one hand, critics echoed the moral claims of temperance-era feminists. On the other, they ignored decades of evolution in the way law and society understands substance use, addiction, and “choice.”

At stake in debates over the extreme intoxication defence are larger questions about how the criminal law defines and understands mental volition in the overwhelming majority of cases that will never meet the extreme intoxication standard.

Politically diverse movements – from law-and-order conservatives to anti-violence feminists to victims’ rights activists – have for decades called for individual responsibility, which the extreme intoxication defence seems to cut against. Sheehy and Grant gave voice to these commitments in castigating the decision as “terrible public policy” that “tells those who abuse alcohol and drugs that they are not responsible for their actions.”

These calls frame wrongdoing largely as a problem of individual choice with criminal punishment being a necessary response. This individualist lens obscures longstanding structural disparities in how the criminal system doles out punishment while reinforcing a sense that retribution is the best or most we should hope for.

Criminologist Mariana Valverde argues in her book Diseases of the Will: Alcohol and the Dilemmas of Freedom that these politically strange bedfellows have come to evaluate crime and punishment from the vantage point of the consequences and effects of acts rather than from the traditional perspective of the accused’s mental state. A focus on vindicating victims competes with, and sometimes supersedes, countervailing questions about an accused’s mental culpability.

Advocates have worked to incorporate individual responsibility into the law through the doctrine of substituted mens rea. According to this reasoning, the decision to consume an intoxicating substance is a morally significant choice. Even where an extremely intoxicated accused lacked the capacity to act voluntarily, a court should substitute his earlier decision to drink to find him criminally liable. In American common law parlance, courts might convict on the basis of “constructive malice aforethought” – the intention to drink can substitute for the intention to commit a crime.

Section 33.1 of the Criminal Code – the provision that the Court of Appeal found unconstitutional – codified this reasoning. Parliament enacted s. 33.1 after similar backlash to the Supreme Court of Canada’s 1994 decision in R. v. Daviault. The Court recognized a defence of extreme intoxication in that case, which involved a 73-year-old sufferer of long-term chronic alcoholism who sexually assaulted a 65-year-old disabled woman. Section 33.1 provides that, in cases of self-induced intoxication, an accused who interferes or threatens to interfere with the bodily integrity of another can be convicted of a crime, regardless of whether he was acting voluntarily at the time.

The Crown was not arguing that the “voluntary” decision to become intoxicated proved an intention to commit an assault.

The Court in Sullivan and in Chan held that s. 33.1 violates the Charter of Rights and Freedoms. Allowing someone to be convicted even when they were acting involuntarily contravenes principles of fundamental justice protected under section 7 of the Charter. The Crown could not rely on substituted intent, Justice Paciocco wrote, “since proving voluntary intoxication does not necessarily or even ordinarily prove the intention to commit assaults, let alone the assaults charged.” The mental element required for an assault conviction pertains to the assault, not to the decision to become intoxicated.

This response sidestepped the thrust of the Crown’s argument. The Crown was not arguing that the “voluntary” decision to become intoxicated proved an intention to commit an assault. The Crown was making a moral claim about intoxication itself. Defendants should be punished even for “unintended or involuntary consequences” because they engaged in the “blameworthy predicate act” of becoming intoxicated.

The Women’s Legal Education and Action Fund likewise stressed the immorality of intoxication in its intervention in the case. “These individuals are not morally blameless; they chose to consume intoxicating substances in amounts that contributed to them perpetrating violence against others. Victims – and women – should not bear the risk of this choice.” The immorality of imbibing to the point of intoxication provides the scaffolding on which to pin criminal culpability for violence.

These arguments revive longstanding claims about inebriety and its victims. Concerns about the use and effects of alcohol fueled the anglo-American temperance movement, which “was the most popular, influential and long-lived social reform movement of the late 19th and early 20th centuries.” In both the United States and Canada, mostly middle and upper-middle-class white women excoriated male drinking as a cause of family destitution and violence. In the words of Canadian suffragist Nellie McClung, the liquor traffic had “waged war on women and children all down the centuries.” Providing one of the few opportunities for political action by women, temperance unions forged an indelible link between feminist organizing and the problems of alcohol.

Modern talk of intoxication as a “moral choice,” however, requires an immense amount of forgetting. For decades, activists and policy-makers have challenged notions of will power and choice in the context of substance use. Recently, the Supreme Court of Canada in R. v. Zora warned against imposing bail conditions such as alcohol or drug abstinence that may target mental health conditions. “Subjecting individuals who are presumed innocent to abstention conditions may effectively punish them for what are recognized health concerns,” Justice Martin wrote. At the pre-trial stage, alcohol and drug use is increasingly viewed through a mental health lens, only to be transformed into an exercise of free will at the culpability stage.

Canadians are reckoning today with the ways that criminal law bears down heavily and unevenly on Indigenous people, Black Canadians, people of colour, the poor, and those with mental health and addiction struggles. More often than not, these groups overlap and intersect. In 2015, to the Office of the Correctional Investigator of Canada found that 80 percent of federally incarcerated men were struggling with addiction or substance abuse. Two-thirds of federal offenders were under the influence of an intoxicant when they committed their index offence. Nearly all federally sentenced Indigenous women (92 percent) have been assessed as having moderate or high substance abuse needs.

The ideological premise underlying all criminal law is that individuals freely exercise some mental intent when they commit wrongful acts. The extreme intoxication defence reinforces this premise. Only those in an intoxicated state akin to automatism – truly lacking any degree of voluntariness – can avail of it. Everyone else, the masses of people who commit non-violent and violent offences while in the grips of substances, are arrested, charged, convicted, and punished. In our current moment of grief, desperation, and rage, we might hope for more transformative change to a system that punishes bodies and minds alike.

Photo: Shutterstock/By GrAl

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Lisa M. Kelly
Lisa M. Kelly is an assistant professor at Queen’s University, Faculty of Law, where she teaches Criminal Law, Evidence, and Sexual and Reproductive Justice.
Nadya Gill
Nadya Gill is an articling student at Durant Barristers working in a sports law context and a soccer coach. Twitter @nadyagill. Instagram @nadyagill98

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