PRESS RELEASE: Bill C-28 Falls Short in Protecting Women

For Immediate Release – 

Algonquin Annishnaabeg Territory/Ottawa, ON – On Friday, June 17th, Justice Minister David Lametti tabled Bill C-28, An Act to amend the Criminal Code (self-induced extreme intoxication). This Bill was introduced in response to a recent Supreme Court of Canada decision striking s. 33.1 of the Criminal Code of Canada leaving a gap in the law for situations when extreme intoxication plays a role in a violent offence against another person; and, unfortunately, evidence shows this type of offence most frequently occurs by men against women.

Feminist organizations in Canada have long been concerned about the connection between men’s use of intoxicants, and violence against women. Study after study has shown that there is a direct link between so-called ‘drunkenness’ and sexual violence. There are studies that report an average of 50% of sexual assault perpetrators consumed alcohol at the time of the assault, with other studies showing a variance of between 30 and 75%. Looking back to the 1994 Daviault decision, in which the Supreme Court ordered a new trial based on the accused’s extreme intoxication at the time of the incident, the ‘gap’ in the law quickly becomes apparent. Mr. Daviault had voluntarily consumed an excessive quantity of alcohol before forcing intercourse on the complainant, an elderly woman with a disability. In response, feminist groups like National Association of Women and the Law (NAWL) pressed the government to restrict the defence of extreme intoxication. The federal government enacted section 33.1 of the Criminal Code, closing the gap by preventing those who voluntarily consume intoxicants and then commit acts of violence from using the defence of extreme intoxication for general intent offences.

In May 2022, the Supreme Court of Canada’s unanimous decision in Brown struck down the law set out in s. 33.1, declaring it unconstitutional and stating that voluntarily taking intoxicating substances cannot replace the criminal intent required for a conviction. This decision re-opens the ‘gap’ left by the 1994 Daviault decision, once again leaving women vulnerable to crimes of violence when the accused can demonstrate that his intoxication put him into a state of automatism. Despite the assurances of some defence lawyers and their allies that reliance on extreme intoxication will be rare, research analyzing the extreme intoxication defence indicates that it will be raised with some regularity. Indeed, research shows that it will be used overwhelmingly by men, and that the majority of victims will be women.

And so, Bill C-28 is the federal government’s rushed response to the recent decision in Brown to once again attempt to close the gap. Kerri Froc, Chair of NAWL’s National Steering Committee states: “While we applaud the Minister of Justice for taking steps to respond to a situation that is dangerous for women, it’s disappointing that the government has taken the path of least resistance.”

Indeed, NAWL is concerned that this reform will prove impossible for the prosecution to implement. And that in the end, the heavy burden of men’s extremely intoxicated violence will fall predominantly on the women they harm. This is because the Crown must prove beyond a reasonable doubt that a reasonable person could have foreseen that the accused’s consumption of a given intoxicant could cause loss of voluntary control, even though reasonable people may not actually know the effects of the intoxicants they are consuming, particularly with respect to quantities and combinations of intoxicants. Further, the Crown must now also prove that the reasonable person could have foreseen that the consumption of the intoxicants could lead them to become violent and harm others, even though there appears to be little scientific evidence to support the claim that any particular drug makes violence more likely. Ultimately, NAWL is concerned that the inclusion of foreseeability of both loss of control AND harm will have an impact on prosecutorial decision-making.

Following the Brown decision, media and commentators drew attention to some of the scientific evidence in that case that alcohol alone could not lead to the level of intoxication required to prove automatism. However, neither Brown nor the proposed Bill C-28 prevents the defence being used where an accused has only consumed alcohol, as was the case in Daviault. This means that despite this scientific evidence, it is still possible for an accused person to try to advance the defence of extreme intoxication even if they consumed alcohol only. While they may not be successful in making out the defence – pleading the defence, in itself, will result in increased timelines and lengthy court processes for victims. Ultimately, C-28 is a missed opportunity to close the door on the use of the extreme intoxication defence where alcohol alone is used.

Unfortunately, in this rushed response there has been a lack of meaningful consultation with interested stakeholders before the Bill was introduced, including NAWL. We ask that Parliamentarians provide committees examining the Bill with sufficient time to hear from medical experts, women’s groups, and Crown prosecutors whose job it is to prosecute on behalf of victims.

The National Association of Women and the Law is a not-for-profit feminist organization that works to achieve substantive equality and the realization of human rights for all women in Canada through legal education, research, strategic intervention, coalition work and feminist law reform advocacy, particularly at the federal level.

For media inquiries, contact:
The National Association of Women and the Law,
Head of Communications, Deirdre Rosaeg,
media@nawl.ca