top of page

Canada’s Extreme Intoxication Defence: Drunk Therefore Innocent

Instalment #1

In 1994, Canada’s Supreme Court acquitted Henri Daviault of sexually assaulting a 65-year-old woman, a friend of his wife’s, who was partially paralyzed and a wheelchair user. There was no uncertainty over whether Daviault had or had not sexually assaulted this woman. Daviault had been at her house, having been asked to bring her some alcohol. Though Daviault claimed he had no recollection of the sexual assault, he admitted to waking up next to her naked. The acquittal was not on the basis that the assault never took place, but rather on the basis that Daviault could not be held accountable for committing the assault when that drunk: at the trial, Daviault testified to drinking around seven or eight bottles of beer and the best part of a bottle of brandy before the assault. He argued that during his ‘blackout’ he was in an ‘automatism-like state’ induced by intoxication. ‘Automatism’ is commonly used as a defence in situations such as night terrors when it is argued that the defendant did not have control of themselves when they acted, thus can be relieved of the consequences of these actions. Like a child, or someone deemed insane, they are not responsible for their actions. The judge ruled that Daviault was unable to form a general intent to commit the crime because he was too intoxicated to control his own actions. It was on this basis that he was acquitted.

Canadians across the country were outraged as they witnessed a man who had committed sexual assault completely avoid punishment. There were widespread protests with many expressing fears that this defence revealed that justice was not on the side of victims but rather failed to protect those most likely to experience violence: women, the disabled, and the elderly… much like the profile of Daviault’s victim. In response, parliament introduced new legislation barring the self-induced intoxication defence only nine months later, prohibiting this defence for violent crimes – such as assault, sexual assault and murder – in an attempt to soothe the public. The Supreme Court also overturned the ruling given during Daviault’s trial, stating that the intent to become intoxicated amounted to a general intent to commit the offence.

Despite the overturning, the Daviault case had implications for my sense of safety growing up. To me, the original ruling was a demonstration of an endemic lack of consideration for victims whose lives are permanently tainted by a perpetrator. As a woman living in Canada, this case contributed to my own silence as well as many others, I am sure. Why would anyone report an assault and relive the trauma in court if nothing will come of it?

In short, the Supreme Court has stated that when someone is extremely intoxicated, it is possible they did not mean to commit the crime and if so, should not be held accountable for it.

Yet, on May 13, 2022, the Supreme Court ruled to again allow extreme intoxication as a defence in violent crimes. Once more defendants who have voluntarily consumed intoxicating substances and then committed violent acts against another person can avoid conviction if they can prove they were too intoxicated to control their actions. The barring of the extreme intoxication defence in violent crime was deemed ‘unconstitutional’, contravening one of Canada’s constitutional acts, the Charter of Rights and Freedoms because a person could lose their liberty through conviction without the prosecution having to prove that the action was voluntary or that the person intended to commit the offence. In short, the Supreme Court has stated that when someone is extremely intoxicated, it is possible they did not mean to commit the crime and if so, should not be held accountable for it.

The Supreme Court of Canada seems to be the only major political institution vouching for the new defence as every major political party has legal experts denouncing the decision. The motivations for the move are seemingly unclear as Canadians across the nation are left in disbelief. Indeed, it seems nonsensical: if someone owns a gun, they must know that their gun is capable of taking another's life. In the case of drugs the voluntary user knows the potential effects of the substance: that they may experience psychological distress, a reduction in their inhibitions, or even act in a way that is inconsistent with their character when under the influence. If a gun owner is playing with their weapon and unintentionally shoots and kills another person that gun owner is still held accountable based on the notion they didn’t respect the weapon and their negligence resulted in the death of another. Yet, if a substance user takes an excessive amount of intoxicating substances and stabs someone to death they’re let off without punishment based on the notion they were too high or drunk to function? In this comparison both crimes were unintentional, and the perpetrators didn’t mean to harm the victim yet both did. Both did not respect the dangers associated with their items. Where’s the logic? Where’s the justice for the victim? I’ve tried numerous times to understand the Court's decisions but find myself growing increasingly frustrated…

Not only do I find it nonsensical, but also deeply worrying when we consider just how many cases there are in which this defence might be invoked. In Daviault's initial trial, it was stated that “the defence would be available only in the rarest of cases…Studies on the relationship between intoxication and crime do not establish any rational link.” However this has been proved to be untrue: in 2021, the Government of Canada conducted a study to gauge the proportion of crimes associated with substance use which found that 40 per cent of offences are a direct result of substance use. Alcohol is associated with 20 per cent of violent crimes, while other substances are associated with, even if they do not directly result in, about 50 per cent of all crimes. The Institute for Research on Public Policy attempted to analyze the year that defence lawyers could use extreme intoxication by going through case law and previous media reports. A total of 23 cases using this defence were found. The defence was successful in seven cases. In five of the successful defences, extreme intoxication was based on voluntary consumption of alcohol alone; the others involved ingesting a combination of substances. Most charges were linked to violence against women, and five of the seven successful cases included violence against women. Fears have already been expressed in court that allowing this defence is tantamount to privileging “individual rights over those of vulnerable groups, including women and children who disproportionately bear the risks of intoxicated violence.” These facts call into question just how “rare” this defence is and reveal the disproportionate effect on those most likely to be the victims of violence.

Certainly, from recent court proceedings following the legalisation of the defence, this seems to bear out: Matthew Brown, who, having attended a party and voluntarily consumed alcohol and hallucinogenic mushrooms, broke into a home and violently attacked a woman inside resulting in permanent injuries. On the basis of the now-legal use of the extreme intoxication defence, Brown was just recently acquitted. Thomas Chan, who had voluntarily consumed alcohol and a large number of hallucinogenic mushrooms with his friends, broke into his father's house and violently attacked him. Chan killed his father and seriously injured his father's partner. Chan has been granted a new trial where he can use the extreme intoxication defence. David Sullivan, who having voluntarily overdosed on a prescription drug in an unsuccessful suicide attempt, attacked his mother and gravely injured her. Sullivan has been granted a new trial where he can use the extreme intoxication defence. In all of these cases, I fear that the victims will not see justice. How many people will get away with victimising innocent citizens? When will the Supreme Court come to realise their repeated mistake and bar this defence once again? As of right now, many Canadians including myself pray it will take less than nine months for our leaders to, once again, reverse their wrongdoings.

I no longer feel safe in my country and the justice system has completely lost my trust. The damage is irreparable as this is the second time the Supreme Court has betrayed Canadian citizens. How are we supposed to move forward and progress as a nation when we are trapped repeating past mistakes? The future of vulnerable groups is in danger and the Supreme Court must act fast to prevent greater harm.


  • 644788_email_512x512
  • Instagram
  • LinkedIn
  • Facebook
bottom of page