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

• Author: Froc, Kerri A.

Introduction

The ss 7, 15 and 28 Charter rights of women and girls to physical, psychological and sexual integrity are directly at issue when their perpetrators stand trial for crimes of violence against them. However, these constitutional protections have never been given much purchase in the Supreme Court of Canada's sexual violence jurisprudence on s 7 Charter fair trial rights and criminal fault standards. (2) At best, courts have paid lip service to women's s 7 "interests" in privacy and equality and in encouraging their reporting of crimes, but have failed to incorporate them into the historically venerated principles of fundamental justice that protect accused persons. (3)

Yet a trilogy of recent cases on the defence of extreme intoxication, R v Brown, (4) R v Sullivan, and R v Chan, (5) jettisoned even this superficial consideration of women's rights in the context of accused men's s 7 constitutional challenge. In Brown, the Court considered the constitutionality of Criminal Code s 33.1, enacted in 1995 in response to the Supreme Court's 1994 decision in R v Daviault. (6) Section 33.1 sought to curtail the defence in cases of self-induced extreme intoxication for crimes of violence, in the interests of protecting the security of the person and equality rights of women and children, and ensuring men's accountability for violence.

Penning a unanimous decision striking down the law as allowing the conviction of the "morally innocent," Justice Kasirer found s 33.1 violated ss 7 and 11(d). He declared that women's countervailing rights could not even be considered in the s 7 analysis because women's equality and human dignity "interests" were not compromised by state action, but rather by individual accused men. (7) Women's equal rights to trial fairness, equality and personal security, were to be treated as "societal interests" under s 1. But, consistent with prior s 7 jurisprudence, the Court found that the s 7 violation posed by s 33.1 could not be justified under s 1.

In resiling from even the modest recognition that women who have experienced men's violence have relevant rights worth considering as part of the core principles that lie at the heart of the criminal justice system under s 7, the Court has truly placed women last among equals. This development would be anathema to the women who fought tirelessly to entrench Charter s 28, which guarantees rights equally to "male and female persons" "notwithstanding" anything else in the Charter. One of s 28's most important purposes was protective: to ensure that women's rights are not devalued or sacrificed for the newly entrenched constitutional rights bestowed primarily for the benefit of men, who are the vast majority of criminal accused.

In this article, we 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, we 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, we 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, we 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. It is our hope that the perspective we offer may be of assistance to Parliament, when it engages in the review of the revised version of s 33.1 promised by the government at the time of Bill C-28's passage, and to judges, as an illustration of what an equality-infused approach to s 7 might look like.

Part I: R v Brown, R v Sullivan, and R v Chan

At issue in all three cases before the Supreme Court was the constitutionality of s 33.1 of the Criminal Code. This section was enacted in 1995 in response to R v Daviault, wherein the Supreme Court of Canada decided that a defence of extreme intoxication must, as a matter of the rights guaranteed in ss 7 and 11(d) of the Charter, be available to a man accused of a brutal rape of a woman in her own home. The Court relied on the expert evidence accepted by the lower court finding that Henri Daviault, a chronic alcoholic, was in a state akin to automatism when he lifted a 65-year-old family friend from her wheelchair and sexually assaulted her on her bed, after he had consumed several beers and most of a bottle of brandy. (8)

The Court found that the common law rule that precluded Daviault from relying on his own intoxication to raise a reasonable doubt about whether he had the necessary intent and voluntariness to be found guilty of sexual assault, a "general intent" offence, was in violation of ss 7 and 11(d) and therefore unconstitutional. The overturning of his conviction caused a Globe and Mail journalist to accuse the Court of "having lost touch with reality". (9) The scientific community at large also criticized the decision, rejecting the contention that consumption of alcohol alone could lead to an automatistic state, as that term was understood medically. (10)

Given the public outrage spurred by the decision and its commitment to women's equality," the federal government added s 33.1 to the Code, with the support and advice of the Canadian women's movement. Section 33.1 's purpose was to promote the "equal participation of women and children in society" and their entitlement to "full protection of the rights guaranteed under ss 7, 11, 15 and 28". (12) Section 33.1 excluded the defence of extreme intoxication from being advanced in relation to general intent crimes of violence. It stated that self-induced intoxication resulting in the inability to form the general intent or voluntariness for a crime was not a defence where the accused "departed markedly" from the reasonable standard of care because their state of self-induced intoxication rendered "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."

Minister of Justice Allan Rock testified before the Standing Committee of Justice and Legal Affairs, when Bill C-72, amending the Criminal Code to add s 33.1, was at Committee stage. He denied that the bill was a "contradiction or reversal of Daviault

The bill responds to the court's invitation by creating a basis of criminal fault in the context of intoxication, and for the first time it would set out a standard of care in the field of self-induced intoxication. People who voluntarily become so intoxicated they lose control of their behaviour ... breach the standard of care generally recognized in Canadian society. The bill defines this breach as criminal fault sufficient for criminal liability. The fault would prevent the intoxication defence from being applicable, since the intoxication itself would be the basis of criminal fault for the offence. (13) Thus, s 33.1 was intended to articulate a standard of criminal fault regarding extremely intoxicated offending, but to limit criminal liability to those cases involving violence or a threat of violence.

The Court heard Brown, Chan and Sullivan together to resolve a conflict in the jurisprudence regarding the constitutionality of s 33.1. Brown emanated from the Court of Appeal for Alberta, which had upheld the constitutionality of s 33.1, quashed Brown's trial acquittal, and substituted convictions for break and enter and aggravated assault. Sullivan and Chan emanated from the Court of Appeal for Ontario, which had struck down s 33.1 as unconstitutional and overturned their convictions, acquitting Sullivan of aggravated assault and assault with a weapon, and sending Chan back for re-trial on charges of manslaughter and aggravated assault.

The facts of Brown were that the accused had attended a house party and "snacked" on magic mushrooms from a shared sandwich bag throughout the evening; he also consumed between 6-7 mixed drinks and a number of beers, bringing his total consumption to 14-18 alcoholic drinks. (14) As a result, he entered a state of "substance intoxication delirium", removed all of his clothing, left his friend's house and broke into the home of a neighbour, a female university professor. When she came out of her bedroom to investigate the disturbance, Brown attacked her with a broom handle, leaving her with a broken hand and other injuries requiring surgery and intensive physiotherapy, an ongoing disability, and post-traumatic stress disorder. He was apprehended after breaking into another residence. (15) Despite Brown's consumption of copious amounts of alcohol, his trial judge accepted that the cause of his delirium was the mushrooms and acquitted him based on the extreme intoxication defence. (16)

In Chan's case, he attended a bar with a group of friends to drink beer and watch a hockey game. Some of the group, including Chan, retired to a friend's basement and acquired some magic mushrooms. The Crown's expert testified that Chan told him that he consumed four times the amount of magic mushrooms he had previously eaten (17)--two "doses"--and twice as many as his companions. He began hallucinating that he was God, with a plan to carry out. He left the party, broke into his father's home, and repeatedly...