Constitutionality
- Section 33.1 has been held to violate sections 7 and 11(d) of the Charter in a way that cannot be saved by section 1 - it has thus be held to be of no force and effect: R v McCaw, 2018 ONSC 3464; R v Cedeno, 2005 ONCJ 91; R v Dunn, 1999 CarswellOnt 3554 (SC); R v Fleming, 2010 ONSC 8022; R v Jensen, 2000 CarswellOnt 6489 (SC);
- Contrary to these rulings, section 33.1 has been found to be saved by section 1 and thus in effect: R v Chan, 2018 ONSC 3849 (see related ruling 2019 ONSC 783; R v Decaire, 1998 OJ No 6339 (SC); R v Dow, 2010 QCCS 4276; R v SN, 2012 NUCJ 2; R v Vickberg, 1998 CarswellBC 954 (SC);
- The impact of these rulings is also a matter of debate. McCaw held that Dunn was binding and section 33.1 is of no force and effect for Ontario; whereas Chan held that it was not binding and disagreed with the outcome. Certainly, rulings of provincial courts are not binding and any finding that section 33.1 is of no force and effect is one that applies only to the applicant before that court: R v Lloyd, 2016 SCC 13.
When defence not available
33.1 (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 subsection (2).
Criminal fault by reason of intoxication
(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.
Application
(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.
Annotations
- Part I
- In order to rely upon this provision, the accused must intend to become intoxicated, either by voluntarily or recklessly ingesting a substance, knowing or having reasonable grounds to know it might be dangerous. The accused need not contemplate the extent of the intoxication or intend a certain level thereof: R v Vickberg, 1998 CarswellBC 954 (SC) @68; R v Chaulk, 2007 NSCA 84 @36,46; R v Brenton, 1999 CarswellNWT 109 (SC) @31,34