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The Extreme Intoxication Defense and Indigenous Women

tansi ninôtemik,


Section 33.1 of the Criminal Code outlines self-induced extreme intoxication as a defence to crime.[1] Extreme intoxication is defined as a state of intoxication where a person is unaware of their actions or incapable of consciously controlling their actions.[2] A person would not qualify for the extreme intoxication defense if (1) their situation contained all of the other elements of the offence [3] and (2) they

markedly departed from the standard of care that would be expected of a reasonable person in the situation of consuming the intoxicants.[4] The court considers the marked departure from the standard of care based on objective foreseeability. The court would decide whether it was objectively foreseeable that, while becoming intoxicated, the accused risked harming another person while in a state of extreme intoxication.[5] 


Essentially, if a person is extremely intoxicated when they commit a crime, they may be able to argue that they should not be held responsible for their actions because of their extreme intoxication. The defence may be successful if the intoxicated person was unable to foresee that they would harm another person while extremely intoxicated.


The extreme intoxication defense can apply to assault, including sexual assault.[6] The Western Centre for Research & Education on Violence Against Women & Children published information on how the extreme intoxication defence is a gendered issue.[7] Lawyer Elizabeth Sheehy explains that men make up the majority of accused who have attempted to argue this defence of extreme intoxication. She also states that the majority of the cases involving this defence are cases where women are victims of violence, including sexual violence.[8] Sheehy writes that women’s advocates consider this defence to be an example of the law colluding with abusers because the defence can be seen as validating the attitude that violence against women is not morally blameworthy if the perpetrator is intoxicated.[9]


Indigenous authors have argued that sexual assault against Indigenous women has been minimized by Canadian criminal law and that the crimes would be judged differently under Indigenous laws. [10] Legal scholar Catharine MacKinnon commented on low conviction rates for rape, stating that “Rape with legal impunity makes women second-class citizens.”[11] 


Given the prevalence of sexual violence against Indigenous women, and the minimization of this violence within the Canadian criminal law system, are Indigenous women then treated as third-class citizens in the context of sexual assault law? Does the extreme intoxication defence, a seemingly neutral provision to protect the accused’s rights, work to uphold patriarchal and colonial systems of violence against women? 


ekosi.


The ReconciliACTION Team



Citations

[1] Criminal Code, RSC 1985, c C-46, s. 33.1.

[2] Ibid at s. 33.1 (4).

[3] Ibid at s. 33.1 (1) (a).

[4] Ibid at s. 33.1 (1) (b).

[5] Ibid at s. 33.1 (2).

[6] Ibid at s. 33.1 (3).

[7] Elizabeth Sheehy, “Understanding the Extreme Intoxication Defence: A Brief by Elizabeth Sheehy” (September 2022), online: <https://www.gbvlearningnetwork.ca/our-work/briefs/briefpdfs/Understanding-the-Extreme-Intoxication-Defence-A-Brief-By-Elizabeth-Sheehy.pdf>.

[8] Ibid. 

[9] Ibid. 

[10] Elizabeth Sheehy, ed, Sexual Assault Law in Canada: Law, Legal Practice, and Women’s Activism (Ottawa: University of Ottawa Press, 2012) at 87.

[11] Catharine MacKinnon, Toward a Feminist Theory of State (Cambridge: Harvard  University Press, 1989) at 182.

[Image] Amy Swiffen & Naomi Barney Purdie, "Why the ‘extreme intoxication’ defence is dangerous for women" The Conversation, (18 November 2020), online: <https://theconversation.com/why-the-extreme-intoxication-defence-is-dangerous-for-women-149679>.

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