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Trapped by our Charter: The Supreme Court of Canada Answers to No One

On May 13, 2022, the Supreme Court of Canada (SCC) ruled to allow extreme intoxication as a defence in both non-violent and violent crimes. Defendants who had voluntarily consumed intoxicating substances and then committed a violent act against another person could avoid legal responsibility if they can assert that they were too intoxicated to control their actions. In my last article, I covered the history of this defence and the cases leading to this decision. Moving forward, I was interested to understand how those in the legal industry perceived this ruling. I know that after finding out about the SCC’s decision to allow extreme intoxication as a defence, I was simply flabbergasted. How could our courts let this happen?

Before we talk about who is in charge, we have to talk about how they got there. Surprisingly, the SCC might give the United States Supreme Court’s justice appointment regulations a run for their money: from the courts’ creation in 1875 up until 2004, the appointment process was, for a lack of a better word, questionable, due to an extreme lack of transparency. The federal Minister of Justice would consult with the Chief Justice of the SCC along with other Canadian legal professionals to make recommendations. The Prime Minister would then be tasked with selecting a justice to appoint. That's it. Not much has changed in the present except for a few rules that slow down the process. The public's opinion does not affect this process, essentially leaving Canadians trapped in a court and legal system they do not agree with. Moreover, a judge can hold office on “good” behaviour up until the age of 75. This kind of gerontocracy typically creates issues whereby those in power do not represent those they are supposed to serve. This structure allows the Supreme Court of Canada relative freedom to make decisions without keeping the public will in mind, generating mistrust toward the legal system as this recent ruling and the corresponding public backlash have exemplified. The SCC’s decisions have a direct impact on the lives of Canadian citizens; shouldn’t we have a say on who represents us and what laws can be implemented?

The SCC's decisions have a direct impact on the lives of Canadian citizens; shouldn't we have a say on who represents us and what laws can be implemented?

The Supreme Court of Canada comprises of nine judges, the youngest being 55 years old. The judicial group also lacks diversity: out of the nine judges, only three are female. Even in 2022, an Indigenous person has yet to be appointed to the Supreme Court. After looking at pictures of the SCC, it became more understandable why the court had decided to allow extreme intoxication to be used as a defence in court… The Supreme Court of Canada is primarily made up of people very different to those who will be hit hardest by the use of this defence.

Understanding the nature of the power these individuals hold is crucial to comprehending this ruling. The first person I spoke to was criminal defence lawyer, Steven Slimovitch, who operates in Montreal, Quebec. He offers counsel to individuals and corporations in criminal, penal and Charter of Rights litigation and is central to a series of Canadian law modifications.

“The role of the courts is more and more that of guardian of the charter,” says Slimovitch. The Charter is the bill of rights enshrined in the Canadian constitution. It outlines which rights Canadians believe are necessary for a free and democratic society. Slimovitch explains that whenever the Charter is perceived as being contravened in the lower courts, the Supreme Court intervenes. A trial where one is unable to argue excessive drunkness might be seen by the court as unfair as it conflicts with one of our rights within the Charter: to make full answer and defence. This aims to ensure that the innocent do not get wrongfully convicted, entitling a defendant to "rules and procedures which are fair in the manner in which they enable the accused to defend against and answer the Crown's case". If the SCC senses the right to make a full answer and defence being infringed, they will act quickly to “amend” this perceived injustice.

“Bear in mind, of course, the courts are answerable to no one.” Slimovitch explained. “If you don’t like [their decisions] too bad. They’re not watching their backs to be re-elected like the legislature is. They couldn’t care less if every Canadian is opposed to this decision.”

You read that correctly. The Supreme Court of Canada is answerable to no one. These justices are selected based on political motivation and can remain in position for decades undisturbed. These judges made this decision only answering to theorized interpretations of the Charter and not the actual living, breathing public.

So that answered my question as to how this was allowed to happen, but I still wondered why these nine individuals would sign off on this decision. Slimovitch says the Supreme Court often acts like a parent to the provinces. After their smaller courts file an appeal, the SCC sets a nationwide standard in response. I was secretly hoping for a grand reveal in this investigation. A hidden political motive that could be exposed to the public and remove the extreme intoxication defence for good, but alas, we are merely trapped by a structure which lacks accountability to the general public.

I went on to interview the Minister of Justice and Attorney General of the Canadian province of Manitoba, Kelvin Goertzen, who, like most Canadians, is against the use of this defence. Goertzen is a Progressive Conservative party member, which is right-leaning on the Canadian political spectrum and is known to support forced-birth organizations that go against the reproductive rights of Canadians with uteruses.

“This is one of those decisions where people scratch their heads and go, it doesn't make sense. Lawyers and attorney generals can explain it from a legal perspective but from a common sense perspective, it doesn't seem just.” he said.

This dedication to upholding the Charter seems to confound even those in the legal profession. It is somewhat comical that a man who supports the restriction of abortion access seems to be so enthusiastic about supporting those victimized and vulnerable. The hypocrisy in this political take demonstrates how far-fetched and distasteful this defence truly is. In passing this ruling, the Court has managed to unite Canadian political parties that traditionally carry a strong distaste for one another. The Supreme Court is acting on its own accord, with all political parties seemingly operating in opposition.

In our discussion, Goertzen and I continued to talk about the defence’s redundancy. The Minister has been extremely active in his advocacy, writing a letter to the federal Minister of Justice asking for negligent provisions to be added to fill the unjust gap.

“The government could build a negligent vision where if you get so intoxicated, that you do something like a violent crime, you still have responsibility through negligence, required. And that's what I'm saying to the Federal Minister of Justice, don't wait; move on this quickly,” he added.

These justices are selected based on political motivation and can remain in position for decades undisturbed.

Many legal professionals have in fact agreed with Goertzen on this point – in fact, they collaborated to pressure the Minister of Justice into making amendments to this defence in the form of a new bill C-28, passed on June 23rd 2022. C-28 means the Criminal Code will be amended to create criminal liability in violent crime cases where the defendant was "in a state of negligent self-induced extreme intoxication.” Essentially, there is now a consequence if the prosecutors can prove that the defendant was being careless at the time of ingestion.

I, however, still remain confused over these new provisions as I do not understand how these changes effectively protect the public. Arguing for “carelessness” is tenuous legal territory which can be easy to dismiss by a good defence lawyer. This makes this defence still very much available for use. As a Candian citizen, I wonder why the court doesn’t simply remove this defence entirely, as we already have a legal defence for situations in which people are not responsible based on cognitive impairments called the insanity plea. There is simply no need for this defence.

Every Canadian should be made more aware of the court system and the structures that restrict our ability to invoke our own legal rights. Perpetrators who have chosen to get intoxicated and commit a crime will walk free because of this decision. The Senate’s legal and constitutional affairs committee is expected to study and report on the issue by March 2023. Until then, we wait and watch this defence and its effects on the public. In my last instalment, I touched on the R v Brown case, and I would like to finish this piece with a statement from Janet Hamnett, the survivor of this case whose perpetrator walks freely without consequence. “What is most important to consider is this negatively impacts victims of aggravated assault across Canada [..] the Supreme Court basically said its allowable to attack, hurt, and even kill someone if the perpetrator is out of control [...] There is no protection for innocent victims in this scenario - only the assailants. Where is the justice in that? This opens a terrifying flood gate……and I fear for future victims.”


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