Limitations on Intoxication Defences

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General Principles

See also: Intoxication

On June 23, 2022, a new version of s. 33.1 was incorporated into the Code.[1]

Self-induced Extreme Intoxication
Offences of violence by negligence

33.‍1 (1) A person who, by reason of self-induced extreme intoxication, lacks the general intent or voluntariness ordinarily required to commit an offence referred to in subsection (3), nonetheless commits the offence if

(a) all the other elements of the offence are present; and
(b) before they were in a state of extreme intoxication, they departed markedly from the standard of care expected of a reasonable person in the circumstances with respect to the consumption of intoxicating substances.
Marked departure — foreseeability of risk and other circumstances

(2) For the purposes of determining whether the person departed markedly from the standard of care, the court must consider the objective foreseeability of the risk that the consumption of the intoxicating substances could cause extreme intoxication and lead the person to harm another person. The court must, in making the determination, also consider all relevant circumstances, including anything that the person did to avoid the risk.

Offences

(3) This section applies in respect of an offence under this Act or any other Act of Parliament that includes as an element an assault or any other interference or threat of interference by a person with the bodily integrity of another person.

Definition of extreme intoxication

(4) In this section, "extreme intoxication" means intoxication that renders a person unaware of, or incapable of consciously controlling, their behaviour. 1995, c. 32, s. 1; 2022, c. 11, s. 1.
[annotation(s) added]

CCC


Note up: 33.1(1), (2), (3), and (4)

Unconstitutional Provision

The prohibition on self-induced intoxication defences for offences of violence was determined to be unconstitutional and of no force or effect.[2]

Self-induced Intoxication

When defence not available

33.1 (1) It is not a defence to an offence referred to in subsection (3) [criminal fault by reason of intoxication – application] that the accused, by reason of self-induced intoxication, lacked the general intent or the voluntariness required to commit the offence, where the accused departed markedly from the standard of care as described in subsection (2) [criminal fault by reason of intoxication].

Criminal fault by reason of intoxication

(2) For the purposes of this section, a person departs markedly from the standard of reasonable care generally recognized in Canadian society and is thereby criminally at fault where the person, while in a state of self-induced intoxication that renders the person unaware of, or incapable of consciously controlling, their behaviour, voluntarily or involuntarily interferes or threatens to interfere with the bodily integrity of another person.

Application

(3) This section applies in respect of an offence under this Act or any other Act of Parliament that includes as an element an assault or any other interference or threat of interference by a person with the bodily integrity of another person.
1995, c. 32, s. 1.

[annotation(s) added]

CCC


Note up: 33.1(1), (2) and (3)

Section 33.1 will exclude intoxication as a defence for general intent offences or involuntariness due to intoxication where the following conditions are met:[3]

  1. the accused was intoxicated at the time of the offence;
  2. the intoxication was self-induced; and
  3. the accused departed from the standard of reasonable care generally recognized in Canadian society by interfering or threatening to interfere with the bodily integrity of another person

This section applies to any mental condition that arises directly from a state of intoxication, including toxic psychosis.[4]

There is "no specific level of intoxication associated with either the defence of extreme intoxication [under s. 33.1] or negating the intent for second degree murder".[5]

Where both s. 33.1 and common law intoxication defences are at issue, it is "preferable for the trial judge to have explicitly instructed the jury that the level of intoxication required to negate the specific intent to kill could be less than intoxication akin to automatism".[6]

Constitutionality

In Ontario, s. 33.1 was found to be unconstitutional for violating s. 7 and 11(d) of the Charter and is of no force or effect.[7]

  1. see List of Criminal Code Amendments (2020 to present)
  2. R v Sullivan, 2022 SCC 19 (CanLII), per Kasirer J
  3. R v Bouchard-Lebrun, 2011 SCC 58 (CanLII), [2011] 3 SCR 575, per LeBel J
  4. Bouchard-Lebrun, ibid.
  5. R v Jensen, 2005 CanLII 7649 (ON CA), 195 CCC (3d) 14, per Simmons and Laforme JJA, at para 22
  6. Jensen, ibid., at para 22
  7. R v McCaw, 2018 ONSC 3464 (CanLII), 48 CR (7th) 359, per Spies J

Murder

See also: Provocation

Where the accused raises the defence of both intoxication and provocation in the context of a murder trial, the judge must ensure that the jury does not confuse the differences between the two defences.[1] A jury should be instructed on intoxication first, specifically on the logical connection between intoxication and the relevant intent for murder. If intoxication raises a doubt, then provocation does not need to be considered. It is only where the requisite intent for murder is found should the jury then consider whether provocation applies.[2] Any instruction on provocation should include consideration of the effect any intoxication may have on the accused.[3]

  1. R v Rothgordt, 2013 BCCA 37 (CanLII), per Finch JA
  2. Rothgordt, ibid., at para 20
  3. Rothgordt, ibid., at para 20