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Parliamentary study says government should explain new extreme intoxication law

‘Extreme intoxication’ renders a person unaware, or incapable, of consciously controlling behaviour
An alcoholic beverage is seen in a drinking establishment in Halifax on Aug. 1, 2018. A parliamentary committee is recommending the federal government launch a public awareness campaign to plainly explain an “extreme intoxication” policy that caused confusion when it was rushed into law earlier this year. THE CANADIAN PRESS/Andrew Vaughan

The federal government should launch a public awareness campaign to clearly explain an extreme intoxication policy that caused confusion when it was rushed into law earlier this year, a House of Commons committee is urging in a new report.

The law updates the Criminal Code after a Supreme Court ruling in May struck down the ban on using self-induced intoxication as a legal defence in a criminal case.

Members of Parliament unanimously agreed to pass the law in June, to get it on the books quickly, and to convene a study of the House justice committee to look at its implementation.

The committee’s report, tabled on Tuesday, says that after the Supreme Court decision, there was “a wave of misinformation, especially on social media and among young people.”

Many people believed that simple intoxication — for example, having consumed alcohol — could be used as a defence for sexual assault after the changes, the report finds.

The new law defines “extreme intoxication” as rendering a person unaware of, or incapable of consciously controlling, their behaviour. The government has maintained that it’s a high bar that is rarely used as a defence and cannot result from the use of alcohol alone.

The law creates a standard for criminal liability when a person commits a crime “in a state of negligent self-induced extreme intoxication.” Courts will need to consider whether it was foreseeable to a “reasonable person” that taking drugs or alcohol could cause extreme intoxication and lead the defendant to harm someone else.

Jennifer Dunn, the executive director of the London Abused Women’s Centre, told parliamentarians in October some women were concerned “perpetrators, mostly men, might automatically think that they will not be held responsible if they are intoxicated.”

The committee report highlights the need for proper public understanding of the new law, particularly in the context of sexual assault.

“Some victims could end up deciding not to report a sexual assault if the offender was under the influence of intoxicants, if they think that they would not be believed or that the offender would be able to easily raise the defence of extreme intoxication successfully,” it says, noting that only about six per cent of sexual assaults are being reported to police.

The study said that some people also incorrectly thought the “extreme intoxication” defence could be used in impaired driving cases.

The parliamentary committee studying the law after its passage is recommending that the government launch a public awareness campaign to communicate the practical effects of the law in plain language, and why it was needed.

It is also urging the government to keep data on the use of extreme intoxication as a defence and review the law in three years.

During a Senate committee meeting last week, Justice Minister David Lametti said recommendations would be “evaluated carefully.”

“I am never closed to a good idea if it will help us improve the Criminal Code,” he said.

The Supreme Court’s decision in May had declared a previous version of “extreme intoxication” rules in the Criminal Code to be unconstitutional.

The old wording had been added by the Liberal government of Jean Chretien in 1995, in response to a 1994 Supreme Court decision that acquitted a man of sexual assault because he was blackout drunk at the time of the offence.

It was intended to prevent similar acquittals.

But the court said that this meant a person could be convicted without the prosecution having to prove they acted voluntarily or that they ever intended to commit a crime — even though a “guilty action” and a “guilty mind” is usually a key factor in finding someone to be found guilty of a crime.

The court’s decision said that Parliament could enact new legislation to update the language in a way that would still hold “extremely intoxicated” people accountable for their violent crimes.

—David Fraser, The Canadian Press

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