Last Among Equals: Women’s Equality, R v Brown, and the Extreme Intoxication Defence

Abstract

In this article, the authors first summarize Brown and its companion cases of Chan and Sullivan. Here we also provide context for this trilogy of cases by describing the 1994 decision in Daviault that was the impetus for s 33.1. Second, they analyze Brown, criticizing it for its likely impact on crimes of violence against women, for its assertion that no state action is involved when men invoke the extreme intoxication defence and the consequent devaluation of women’s constitutional rights, and for the failure to account for the role of s 28 in the interpretive process. Third, they describe Parliament’s response to the Brown decision: the rushed passage of Bill C-28, which amended Criminal Code s 33.1 one month after Brown, the refusal to consult feminist lawyers and organizations in a meaningful way, and the flawed legislation it produced.Fourth, the article turns to a discussion of what the Court and Parliament missed: an opportunity to consider a broader, equality-infused understanding of the principles of fundamental justice in s 7 and the justification analysis under s 1 using s 28 as an interpretive guide. Fifth and finally, they argue that this constitutional re-grounding could have supported a stronger version of s 33.1, in contrast to that found in Bill C-28.

NOTE: This article is subject to minor edits and formatting changes in anticipation of its formal publication in the University of New Brunswick Law Journal vol 73, coming Fall 2022. The pagination and citations of this preliminary version should not be relied upon when citing the article.

Keywords: criminal law, extreme intoxication, women's rights, right to a fair trial, 'moral innocence', violence against women

JEL Classification: K14, K39