Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog


In R. v. Brown, 2021 ABCA 273 July 29, 2021, the accused was charged with a number of offences, including the offence of aggravated assault.  He argued that section 33.1 of the Criminal Code violated sections 7 and 11(d) of the Charter by preventing him from raising the defence of non-mental disorder automatism by reason of intoxication.

Section 33.1 states as follows:

(1) It is not a defence to an offence referred to in subsection (3) that the accused, by reason of self-induced intoxication, lacked the general intent or the voluntariness required to commit the offence, where the accused departed markedly from the standard of care as described in (2).

(2)  For the purposes of this section, a person departs markedly from the standard of reasonable care generally recognized in Canadian society and is thereby criminally at fault where the person, while in a state of self-induced intoxication that renders the person unaware of, or incapable of consciously controlling, their behaviour, voluntarily or involuntarily interferes or threatens to interfere with the bodily integrity of another person.

(3)  This section applies in respect of an offence under this Act or any other Act of Parliament that includes as an element an assault or any other interference or threat of interference by a person with the bodily integrity of another person.

The application judge concluded that section 33.1 infringed section 7 and 11(d) of the Charter.  A declaration of unconstitutionality was issued.  At the accused’s trial, he was permitted to raise the automatism defence.  He was acquitted.

The Crown appealed.

The Alberta Court of Appeal described the issue raised by the appeal in the following manner:

The issue on this Crown appeal is whether s. 33.1 of the Criminal Code is unconstitutional. That section…provides that “self-induced intoxication” is not a defence to any general intent offence involving interference with the bodily integrity of another person because such an accused departs markedly from the standard of reasonable care generally recognized in Canadian society.

The Court of Appeal concluded that section 33.1 was constitutionally compliant (at paragraphs 49 and 87):

In summary, s. 33.1 is a constitutionally compliant response to a problem that has been known in the criminal law for generations. It is not contrary to the principles of fundamental justice to hold persons accountable for what they do when they voluntarily become extremely intoxicated and cause injury to others…In conclusion, the appeal should be allowed. The declaration of invalidity of s. 33.1 should be set aside. A conviction should be entered on the lesser and included offence under count 1 of aggravated assault. The matter should be returned to the trial court for sentencing.

In a concurring opinion, Khullar J.A. held that section 33.1 violates section 7 of the Charter, but is saved by section 1 (at paragraph 166):

I have had the opportunity to read the reasons of my colleagues, and I disagree with their analysis of s 7 of the Charter as I find that s 33.1 of the Criminal Code breaches the principles of fundamental justice. In the end, though, I agree that s 33.1 of the Criminal Code is constitutional as it is saved under s 1 of the Charter. However, I think this is a hard and close case. Parliament made a difficult judgment call. It has chosen to hold people criminally responsible for violence arising from self-induced intoxication in a particular context and to deter people from such intoxication because it might lead to violence. It did so after examining a number of other options and it made a considered defensible choice.