Voluntary Intoxication and the Charter: Revisiting the Constitutionality of Section 33.1 of the Criminal Code

Abstract

Section 33.1 of the Criminal Code is a legislated form of guilt-by-proxy. It allows the court to substitute the mens rea of voluntary intoxication for the mens rea of general intent offences that involve an element of personal violence. It represents a revival of the controversial Leary rule, albeit with limited application to crimes of violence. Parliament enacted section 33.1 notwithstanding the unequivocal view of the majority of the Supreme Court of Canada in R v Daviault that the Leary rule violated sections 7 and 11(d) of the Charter and could not be justified under section 1. It would appear, from reasons that echo the decision of the majority in that case, that section 33.1 similarly offends the Charter. However, despite the passage of more than twenty years since its enactment, and sharply divided trial court rulings on the Charter question, the Supreme Court has yet to decide the issue. It is recommended on the basis of the analysis set out in this paper that the provision be struck. Alternatively, it is proposed that the courts interpret the provision in a manner that effectively incorporates the constitutionally required minimal fault standard. Either way, the question of the constitutionality of section 33.1 must be resolved, failing which accused persons in Canada face the disconcerting prospect of differential treatment at law depending largely on the jurisdiction in which their case proceeds.

Keywords: intoxication defence, extreme intoxication

JEL Classification: K14