Last Among Equals: Section 28, Women’s Equality, Extreme Intoxication and Violence Against Women
43 Pages Posted: 20 Dec 2021
Date Written: December 19, 2021
In this article we make the case for the constitutionality of s 33.1, which eliminates the “extreme intoxication” defence for “general intent” crimes of violence. In the first part, we discuss our concern arising from the fall 2021 Supreme Court of Canada hearings in the Sullivan, Chan and Brown appeals, all of which involve Charter challenges to s.33.1. Section 33.1 was enacted in response to the Daviault decision in 1994. The accused are challenging s.33.1 on the basis that it offends the principle of fundamental justice that the “morally innocent” shall not be convicted of a crime. In the second part of this article, we show that intoxicated violence is gendered in terms of who commits it and who bears the consequences. We ground our analysis by looking at the data that describe the impacts of sexual assault and intimate partner violence upon women’s lives and notorious facts about the role of intoxicants in men’s gendered violence. We also count the cases where men invoked the extreme intoxication defence in the almost 12 months between the release of the Daviault decision and s 33.1 coming into force in 1995, and the cases in the period 1995-2021. In the last portion of the article, we argue that s.33.1 does not offend ss. 7 or 11(d), employing the sex/gender lens required by Charter section 28. Last, we argue that if s.33.1 is found to offend either, it would be saved by section 1 given the preeminent status given to sex/gender equality by virtue of section 28.
Keywords: Extreme intoxication, sex equality, women's rights, criminal law.
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