R v. SN, 2012 NUCJ 02

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R v. SN, 2012 NUCJ 02 Date: 20120213 Docket: 21-10-252 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: SN ________________________________________________________________________ Before: The Honourable Mr. Justice Sharkey Counsel (Crown): L. Lane Counsel (Accused): T. Fairchild Location Heard: Iqaluit, Nunavut Date Heard: November 17, 2011 Matters: Criminal Code, s. 33.1 , Charter ss. 1 , 7 and 11 (d).

REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication) Amended Decision: An amended decision was issued on February 20, 2012; the corrections have been made to the text and the amendment is appended to this judgment.

I. INTRODUCTION [ 1 ] The applicant (accused), SN, has brought an application to have

section 33.1 of the Canadian Criminal Code (the Code) declared unconstitutional and, therefore, of no force and effect. [ 2 ] The applicant, SN, is an adult male. He is accused of sexually assaulting another adult male. SN and the alleged victim were locked up in the drunk tank at their community RCMP detachment when the incident supposedly took place. Neither SN nor the other male have any memory of events because of their respective states of intoxication.

The only evidence of the sexual activity which forms the basis of the charge comes from the observations of a civilian guard and the police. [ 3 ] The accused, SN, has pled not guilty to this charge of sexual assault.

He has gathered scientific evidence to suggest that, based on his highly intoxicated state at the time of the incident, he would not even have been aware of what he was doing. [ 4 ] SN says, and assuming that the Crown can prove the criminal act of sexual assault, that he did not have the requisite 'guilty mind' to accompany the 'guilty act.' [ 5 ] The practical question before me today is whether, at his trial, SN will even be permitted to make such an argument, i.e. to even present such a defence. This is because s. 33.1 of the Criminal Code says he cannot. [ 6 ]

Section 33.1 says that self-induced intoxication which renders a person unaware of or incapable of controlling their behaviour is not a defence where the person is charged with an offence such as sexual assault or any other offence involving the bodily integrity of another person. [ 7 ] Thus, if it were not for s. 33.1 of the Criminal Code , SN would be allowed to present his defence (which is often referred to as the defence of "extreme intoxication"). [ 8 ] Accordingly, SN brings this application to have s. 33.1 declared unconstitutional.

He says that s. 33.1 violates his constitutionally guaranteed rights under the Canadian Charter of Rights and Freedoms (Charter). Specifically, his right under s. 7 not to be deprived of his liberty, except in accordance with principles of fundamental justice, and his right under s. 11(

d) to be presumed innocent until proven guilty. [ 9 ] The Crown, as respondent, concedes (with some reservations) that s. 33.1 does indeed violate SN's rights as guaranteed by ss. 7 and 11(

d) of the Charter . [ 10 ] However, the Crown points to the overriding provision in s. 1 of the Charter , under which Charter rights may be subject to demonstrably justifiably reasonable limits. The Crown argues that s. 1 should operate, in this case, to 'save' s. 33.1 from being declared unconstitutional. [ 11 ] I conclude that s. 33.1 passes constitutional muster and rule that SN's application is denied.

Section 33.1 is, therefore, valid legislation of full force and effect. [ 12 ] Accordingly, SN will not be permitted to plead the defence of “extreme intoxication" at his trial. II. ANALYSIS

A. Background: R v Daviault; intoxication and moral blameworthiness [13] This judgment revisits an old debate. [14] It is well entrenched throughout the common law world that a person may only be found guilty of a criminal offence if theircriminal act (actus reus) is accompanied by a criminal mind (mens rea). [15] The concept of 'absolute' criminal liability, the notion that a person can be found guilty of a crime simply by doing a criminal act, isforeign to the common law.

An element of 'fault' or 'moral blameworthiness' must accompany a perpetrator’s actions before they will becriminally accountable. [16] The question of how a person's intoxicated state (as a result of consuming alcohol or illicit drugs) factors into their criminalculpability is something which legislative bodies have traditionally shied away from dealing with.

The issue has been left to thediscretion of the judiciary. [17] It is generally accepted that drunkenness may operate as a defence to a crime of 'specific' intent (where some foresight ofconsequence is essential to liability), but not to crimes of 'general intent' (where an accused only need be basically aware, in the mostminimal sense, of what they are doing). [18] This basic rule has, however, been subject to change, and much debate, throughout the common law world. [19] In most criminal trials proving general intent is not complicated.

It is often established simply on the basis of what the accused doesor says. [20] Canadian courts have historically held that intoxication does not operate as a legal excuse to an offence of general intent and that anaccused is morally blameworthy for committing such an offence despite their intoxication (R v Leary, (SCC), [1978] 1SCR 29). [21] It is also well established in Canada that the offence of sexual assault is a 'general intent offence' (R v Barnard, (SCC), [1988] 2 SCR 833, 45 CCC (3d) 1). [22] In the late 1980s, Canadian courts started to revisit the notion that drunkenness could not operate as a defence to crimes of generalintent.

Then, in 1994 the Supreme Court of Canada released its judgment in R v Daviault, (SCC), [1994] 3 SCR 63, 118DLR (4th) 469 [Daviault]. [23] The accused, Daviault, was charged with sexual assault. He presented expert evidence in his defence which suggested that he mayhave been in a "black out" state and, consequently, had no awareness of his actions, i.e. that he was so intoxicated he was in a statesimilar to automatism.

The trial judge found Daviault not guilty on the basis that there was a reasonable doubt about whether hepossessed the basic intent required for sexual assault. [24] The essence of that ruling was upheld by a 6-3 majority of the Supreme Court. [25] Cory J., writing for the majority, opened up a limited use of the defence of intoxication for general intent offences – provided thatthe intoxication was so severe "as to be akin to insanity or automatism." Cory J. explained this concept as follows: "The phrase refers to aperson who is so drunk that he is an automaton.

As such he may be capable of voluntary acts such as moving his arms and legs but isquite incapable of forming the most basic or simple intent required to perform the act prohibited by a general intent (emphasis added)offence" (Daviault at 100).

[ 26 ] In allowing for an accused to plead this new defence, which became known as "extreme intoxication", the Court crafted an important evidentiary rule or proviso: namely, it is the accused who must prove that the defence of extreme intoxication has traction. [ 27 ] The accused has the persuasive burden of showing as a probability (and with expert evidence in support) that because of extreme intoxication he was in a mental state akin to insanity or automatism, i.e. incapable of even the most basic awareness, or incapable of controlling the voluntariness of his actions. [ 28 ] Leading academics have noted that at the core of the majority's judgment was “the concern that the blameworthiness for becoming intoxicated cannot be substituted for the fault for the particular offence.

An accused who becomes extremely intoxicated may be blameworthy, but that blameworthiness cannot be equated with the fault for a criminal offence.” And because extreme intoxication could negate either the mens rea or the actus reus of an offence, it would be contrary to ss. 7 and 11(

d) of the Charter to permit a conviction where one of these elements had not been proven beyond a reasonable doubt. [ 29 ] The majority in Daviault held that the criminal mind and the criminal act must co-exist contemporaneously. [ 30 ] Sopinka J., in dissent, opted for a more flexible approach - holding that there is no principle of fundamental justice requiring there to be exact symmetry between the mens rea and actus reus for a general intent offence.

Sopinka was of the view that the principles of fundamental justice can be met provided that a "blameworthy mental element be proved and that the level of blameworthiness not be disproportionate to the seriousness of the offence" (Daviault at 118). [ 31 ] Neither the majority nor the dissent in Daviault suggested that an accused who commits an offence while extremely impaired is morally innocent. The difference lies in whether the fault must correspond precisely to the actus reus. The majority focused on whether an intoxicated accused was blameworthy enough to warrant conviction for the substantive offence.

The dissent focused on whether an intoxicated accused was morally blameless (Grant, n 2, at para 49). [ 32 ] The majority expressly said Parliament could create an offence of criminal intoxication, i.e. punishing someone who commits an offence while intoxicated. [ 33 ] On the other hand, Sopinka J., in dissent, would hold an accused accountable and not allow him to plead the absence of mens rea, where he has voluntarily caused himself to be incapable of mens rea.

Sopinka J. was of the view that the principles of fundamental justice require that individuals be held accountable for harm they cause (Daviault at 119). [ 34 ] In the end, the Supreme Court sent Daviault's case back for a new trial, allowing him the opportunity to advance this newly minted defence of extreme intoxication.

Eventually, however, the charge was dismissed because of the death of the complainant. [ 35 ] The facts of Daviault were, of course, disturbing - the victim was an elderly woman who had been dragged from a wheelchair and raped. [ 36 ] The Supreme Court decision in Daviault evoked a vocal public response as well as media attention from around the world. The idea that someone could be too drunk to commit sexual assault shocked the public's sense of justice and common sense. [ 37 ] Parliament's legislative response was s. 33.1 of the Criminal Code . The

Preamble to s. 33.1 identifies the most vulnerable victims of intoxicated violence, and the legislation itself codifies Sopinka J.'s dissenting view that perpetrators of intoxicated violence should be held accountable if their drunkenness results in breaching a standard of care which they owe to their fellow citizens (An Act to amend the Criminal Code (self-induced intoxication), SC 1995, s 32,

Preamble [Preamble]). B. Can s. 33.1 of the Criminal Code be "saved" by s. 1 of the Charter ?

[38] The respondent (Crown) concedes that s. 33.1 of the Criminal Code infringes the applicant (accused), SN's, rights under ss. 7 and11 (

d) of the Canadian Charter of Rights and Freedoms (Charter). [39] The Crown says, however, that this infringement is defensible under s. 1 of the Charter. [40] The onus, of course, is upon the Crown to show that s. 33.1 is "saved" by s. 1 of the Charter. This will only be the case if s. 33.1meets the criteria set down by the Supreme Court of Canada in R v Oakes, (SCC), [1986] 1 SCR 103, 24 CCC (3d) 321[Oakes]. [41] The analytical framework established by Oakes to determine the question of whether a legislative provision passes constitutionalmuster requires that two conditions be met.

First, the legislative objective being pursued must be sufficiently important to warrantoverriding a constitutionally protected right - it must relate to concerns which are pressing and substantial. Second, the measures chosento achieve the objective must be proportionate to the objective in question. (i). The objective [42] The legislative objective must be sufficiently important to warrant limiting a constitutional right; it must relate to concerns whichare pressing and substantial. Is such the case here? [43] The Crown says that the objective of s. 33.1 is just as stated in the

Preamble - namely, to provide full benefit of the law's protection,and security of the person, to victims of 'intoxicated' violence most particularly women and children, and to ensure that the equalityrights of women to full participation in society are preserved within such a protective context. [44] The accused acknowledges, of course, that alcohol related violence against women is a significant problem in our society.

Counsel'sposition, however, is that the 'stated' object of s. 33.1, protection of victims of violence, most particularly women, is not the 'actual' orreal object. [45] Counsel for the accused suggests that s. 33.1 is nothing more than a legislative overreaction to an unpopular court decision, and thatParliament's 'real' object was simply the elimination of a defence to a person accused of a crime - again, that the stated objective is notthe actual objective. [46] Counsel suggests that the harshness of the public response to Daviault supports the position that the actual objective is the closingof a narrow opportunity for the defence of extreme intoxication. [47] Counsel further suggests s. 33.1 is an unnecessary response to the Daviault decision since the defence of extreme intoxication is sorarely pleaded and, even then, so rarely successful.

I will deal with this argument, below, under another aspect of the Oakes test. [48] I agree with the Crown position that the real object of s. 33.1 is the protection of women from alcohol-related or intoxicatedviolence and, in turn, the preservation of women's equality rights to full participation in Canadian society.

The statistical data showingthe extent to which women (and more particularly Aboriginal women) suffer from intoxicated violence is stunning. [49] In Nunavut, where violent crime is several times the national average, it is anecdotal but true that the judges of this Court rarely seea case of violence against a woman - whether it be assault, spousal assault, sexual assault, or spousal manslaughter - where the offenderis not intoxicated.

So, it is within this context that I analyze the legislative objective of s. 33.1. [50] I do not agree that the real objective of s. 33.1 is simply to eliminate extreme intoxication as a defence to a criminal charge. Rather,I agree with the Crown’s position that eliminating the extreme intoxication defence is simply the means by which Parliament’s ultimategoal, or object, is attained.

[51] In this regard, the situation is analogous to the tobacco advertising case of RJR-MacDonald Inc v Canada (Attorney General), (SCC), [1995] 3 SCR 199, 127 DLR (4th) 1 (QL) [RJR-MacDonald].

The 'real' objective of a law which prohibited tobaccoadvertising was to protect Canadians from the health risks of smoking - not to curtail the company's right to free speech and expression;prohibiting advertising was not the objective of the law, but simply the 'means' to an important national health objective. [52] Parliament's decision to frame the extreme intoxication defence as a women's issue was no doubt influenced by the public's reactionto Daviault.

This, however, adds strength to the view that the real object of s. 33.1 is the protection of women and their inclusion as fullyparticipating members of society. [53] Given the extensive sociological and statistical evidence before the Standing Committee on Justice and Legal Affairs (35thParliament) which considered Bill C-72, the precursor to s. 33.1, Parliament chose to state the objective of s. 33.1 in the

Preamble, supra,expressly in terms of the constitutional rights of women under s. 7, as well as under ss. 15 and 28. [54]

Section 15 equality rights may "enhance" the objective of the legislative provision looking to be 'saved' by s. 1 [Dickson, C.J., in Rv Keegstra, (SCC), [1990] 3 SCR 697, 61 CCC (3d) 1 at para 76 (QL) ]. [55] And, more generally, the Supreme Court has said that where the legislative object is itself the protection of another constitutionalright, such an object will be seen to be of "exceptional importance" (Canadian Broadcasting Corporation v Dagenais,(SCC), [1994] 3 SCR 835 at 890, [1994] SCJ No 104). [56] The legislative object of s. 33.1 concerns matters of pressing and substantial national concern.

It is of sufficient importance towarrant limiting the accused's constitutionally protected rights under ss. 7 and 11 (

d) of the Charter. This aspect of the Oakes criteria hasbeen successfully met by the Crown. (ii). Proportionality [57] The second condition which the state must satisfy under the Oakes test if impugned legislation is to be constitutionally saved by s. 1of the Charter is this: the measures or means chosen must be proportional to the objective. [58] There are three aspects to this 'proportionality' requirement: (

a) The measures chosen must be rationally connected to the objective; they must not be arbitrary, unfair, or based on irrationalconsiderations; (

b) The measures should impair the right or freedom in question as little as possible, and; (

c) There must be proportionality between the deleterious effects of the measures and the benefits (salutary consequences) they areintended to produce. [59] Impugned legislation must satisfactorily meet these three criteria in order for the larger proportionality requirement to be met. It isnecessary, therefore, to see how s. 33.1 stacks up respecting a "rational connection" to its legislative objective, as well as a "minimumimpairment" and "proportionate balance" between the legislative objective and the constitutional rights which have been infringed. B.ii.1 Rational connection

[ 60 ] One of the two important premises underlying the majority view in Daviault is that intoxication is not, itself, the cause of violent crime. [ 61 ] The

Preamble to

section 33.1 addresses this connection between intoxication and violence, head on, as follows: Whereas the Parliament of Canada recognizes that there is a close association between violence and intoxication and is concerned that self-induced intoxication may be used socially and legally to excuse violence, particularly violence against women and children. (emphasis added) [ 62 ] Parliament considered many studies from different disciplines on the association between intoxication and violence. [ 63 ] For example, the Standing Committee on Justice and Legal Affairs heard from an Addiction Research Foundation scientist who testified that alcohol use was prevalent in incidents of violence in more than 50% of Canadian cases, and that studies in other countries had discovered a positive correlation between per capita consumption of alcohol and rates of domestic violence (Respondent's Factum at para 17, referencing Standing Committee on Justice and Legal Affairs, Evidence of the Committee, 35th Parliament, Meeting No. 161 (June 13, 1995) at 9 [Standing Committee]). [ 64 ] The Committee also heard from Dr.

John Bradford, Head of Forensic Psychiatry at the Royal Ottawa Hospital, who posited an association between intoxication and violence that was stronger than the association between mental disorder and violence. Dr.

Bradford also stated that alcohol consumption is associated with sexual violence in that it can contribute to a sex offender's arousal and propensity to offend (Standing Committee at 11). [ 65 ] There was an abundance of forensic and sociological testimony and data before the Committee to show that while alcohol is neither a sufficient nor a necessary cause for violence, alcohol and violence do co-exist; they do go together.

It is clear that s. 33.1 was not an arbitrary or unfair Parliamentary response to Daviault, nor a response based on irrational considerations. [ 66 ] It is also well established law that for an impugned legislative measure ( s. 33.1 ) to 'survive' this rational connection stage, Parliament need not establish a rational connection between the objective (protection of victims and preservation of equality rights) and the means (no more extreme intoxication defence) on a civil standard of proof. [ 67 ] Rather, it is sufficient for the government (Crown) to show that Parliament had a reasonable basis for believing that a rational connection exists (RJR-MacDonald at para 82). [ 68 ] The accused, SN, contends that the Crown has not met the rational connection stage. [ 69 ] Counsel's position is that if the actual object of s. 33.1 is to extend the protection of the law to women generally, then the elimination of one difficult to prove defence does not rationally connect to this object.

Rather s. 33.1, by removing one defence from a tiny number of intoxicated automatons, does not significantly extend the protection of the law from violence to women, nor ensure their equal and full participation in society. [ 70 ] Counsel suggests that if the actual or real object of s. 33.1 is the elimination of extreme intoxication as a defence, then s. 33.1 would rationally connect to its actual object. The logic of this argument is sound. I do not, however, accept the premise upon which the conclusion is based. [ 71 ] In my view, s. 33.1 is rationally connected to its legislative objective.

This aspect of the Oakes criteria has been met by the Crown. B.ii.2. Minimal impairment

[72] I must determine whether the impugned provision (s. 33.1) impairs ss. 7 and 11(

d) as little as possible. [73] This analysis does not, however, take place in a vacuum.

It is conducted by taking into account the legislative objective of s. 33.1 -namely the protection and equality of women from intoxicated perpetrators of violence by holding such perpetrators accountable. [74] I pause to note that although s. 33.1 is particularly concerned with violence against women, it offers protection to all persons whoare the victims of intoxicated violence. [75] And it is not for me, at this minimal impairment stage, to second guess Parliament; for example, to declare that there was a betterway for Parliament to achieve its legislative objective than by passing s. 33.1 into law. [76] Parliament is entitled to some "leeway," and the courts will not find a measure overbroad "merely because they can conceive of analternative which might better tailor objective to infringement" [McLachlin J. [as she was then] in RJR-MacDonald at para 160]. [77] It is also well settled law that Parliament is not required to choose the absolutely least intrusive alternative to satisfy this minimalimpairment branch of the Oakes analysis.

The legislative response only needs to fall within a range of reasonable alternatives.

The issueis whether Parliament could reasonably have chosen an alternative means which would have achieved the identified object as effectively(RJR-MacDonald; R v Downey, (SCC), [1992] 2 SCR 10 at 37, [1992] SJC No 48). [78] I agree with the Crown that there was ample evidence that the government considered alternatives to s. 33.1 in the drafting process,and that the Parliamentary record of committee hearings reflects this fact [Gough; Grant, n 2; R v Vickberg, (BCSC), [1998] BCJ No 1063, 16 CR (5th) 164 at para 97 (BCSC) (QL)]. [79] Legal scholars have commented at length on these alternative measures - none of which Parliament felt could have effectivelyachieved the identified objective. [80] Among these alternatives were: • A statutory 'extreme intoxication' defence; with a reverse onus (and persuasive burden) of proof and requiring medical evidence This was problematic because it amounted to nothing more than a codification of Daviault.

Thus, since it left women vulnerable, it couldnot have achieved the identified objective. This proposal also suffered from a suspect empirical premise - namely, that extremeintoxication can cause automatism or clinically negate basic awareness (general intent). • A new offence of 'Criminal Intoxication' This proposal was problematic from both a penalty and accountability perspective (regardless of whether the new offence was a stand-alone or included offence).

First, from a penalty perspective: if the penalties were the same then the new offence is redundant (exceptperhaps for the stigma attached); if the penalty for the new offence was less, then Parliament is giving a discount for intoxicated violentcrime. Second, from an accountability standpoint, the offence of criminal intoxication shifts the focus away from the blameworthinessfor violence towards the blameworthiness for intoxication.

There would also be significant prosecutorial difficulties with such newoffence at the charging stage, since drunkenness may not arise until trial. • A special verdict of "Not criminally responsible because of intoxication"

This proposal was problematic because it frames extreme intoxication as a medical issue, and shifts the focus from moral responsibilityfor violence towards sickness. The verdict implies a treatment aspect to the penalty. The sentence may be ineffective if an offender is notinterested in treatment regardless of how long they might be detained (likely, in a hospital setting) until they are amenable to treatment. [81] At common law, under the Leary rule, the defence of intoxication is precluded for all general intent offences.

Section 33.1precludes the defence only for crimes of violence. Thus, an accused could still plead extreme intoxication (something beyond simpledrunkenness) in a general intent property offence. Similarly, specific intent offences are outside the scope of s. 33.1. [82] Jurisdictions outside of Canada have considered innovative ways to accommodate the extreme intoxication defence. For example, in1986 in Australia, the Victoria Law Commission considered allowing the extreme intoxication only in jury trials and only if expresslypleaded by the defendant.

Counsel would not be allowed to strategically leave extreme intoxication as part of a judge’s duty to instructthe jury. This type of proposal has been criticized as showing little faith in the defence itself (Gough at 726). [83] In my view, s. 33.1 falls within the range of reasonable alternatives that were available to Parliament to achieve its objectives inresponse to a pressing social problem. It is a measured response - and not an overly broad legislative provision - which is entitled tojudicial deference. Accordingly, s. 33.1 meets the minimal impairment criteria of the Oakes test. B.ii.3.

Proportionality [84] I must determine whether the salutary benefits of s. 33.1 outweigh the deleterious effects of the legislation. There is a standard ofreview in this balancing exercise. [85] The accused argues, relying upon the case authority of Ruzic and Heywood, that the bar is quite high.

So high in fact that theseauthorities suggest it is doubtful any legislative provision which infringes s. 7 of the Charter can ever be justified except in cases ofnational emergency (R v Ruzic, 2001 SCC 24, [2001] 1 SCR 687 [Ruzic]; R v Heywood, (SCC), [1994] 3 SCR 761,[1994] SCJ No 101 [Heywood]). [86] Counsel relies upon Dunn in support of the proposition that since the s. 7 guarantee of fundamental justice is such a cherishedvalue, it is contradictory to suggest any violation of this constitutionally enshrined concept could be ever be saved by s. 1, short of asituation where the country's defence was at stake [R v Dunn, (ON SC), [1999] OJ No 5452; 28 CR (5th) 295(ONSC)]. [87] Counsel suggests this position is emboldened by an additional violation of the fundamental starting premise for any criminal trial,as first enunciated in Woolmington v Director of Public Prosecutions, [1935] AC 462, namely, the presumption of innocence, nowconstitutionally enshrined as s. 11 (

d) of the Charter. [88] The respondent suggests that such a "doomsday" approach to this aspect of the proportionality test is unwarranted. The Crown saysthat not all s. 7 infringements are equally momentous.

Counsel notes that in Oakes, Dickson C.J. acknowledged the need for a contextualanalysis by saying simply that "the more severe the deleterious effects of a measure, the more important the objective must be if themeasure is to be reasonable and demonstrably justified in a free and democratic society” (Oakes at para 71). [89] There is no doubt, however, that the test for overriding Charter rights under s. 1 is a high one.

The justification must be convincingin the sense that it is sufficient to satisfy the reasonable person looking at all the evidence and relevant considerations that the state isjustified in infringing the right at stake to the degree it has (Huot J.C.S. in R v Dow, 2010 QCCS 4276, 261 CCC (3d) 399 at para 121; and R v Sharp, 2001 SCC 2, [2001] 1 SCR 45). [90] In my view, a more flexible approach, as advocated by the Crown, is the correct standard to apply respecting proportionality. Forexample, in Heywood, the court found that s. 179(1)(

b) of the Criminal Code (loitering) was clearly overbroad and a violation of s. 7 ofthe Charter which could not be saved by s. 1. The Court was clear that overbroad legislation infringing s. 7 is very difficult to justify, andwould appear to be incapable of passing the minimal impairment branch of the s. 1 analysis. The point, however, is that criminalloitering as an offence could not be saved by s. 1 of the Charter only because it violated s. 7.

[91] The applicant argues that there are negligible, if any, benefits to women flowing from s. 33.1.

Again, Counsel acknowledges theserious problem of violence against women, but says also that the statistical increase of this violence may suggest s. 33.1 has done little toaddress the problem. [92] Once again, Counsel notes that the defence of extreme intoxication is so rarely pleaded, and even then so rarely successful that theminimal benefit it may grant to a very few complainants is overshadowed by the harm done to those accused who have been stripped of avalid defence. [93] Counsel argues that the criminal context in this weighing exercise is critical.

The Court is not dealing with, for example, acommercial interest as in RJR-MacDonald, but the liberty of the subject and, absent any demonstrable evidence that s. 33.1 actuallyprovides protection beyond what already is available in the Criminal Code, it cannot be justified under s. 1. [94] Counsel says that SN's case compares to R v Nguyen, (SCC), [1990] 2 SCR 906, 59 CCC (3d) 161 [Nguyen].Nguyen was charged with having sexual relations with an underage female. The charging provision in force at the time expressly deniedthe defence of honest mistake about the complainant's age.

The Court held that the provision had thus created an absolute liabilityoffence which would allow a morally innocent person to be found guilty - and further that 'mental innocence' cannot be left to thesentencing stage. [95] The Criminal Code provisions respecting sexual contact with underage persons have been radically overhauled since Nguyen.Importantly, as well, there is now a statutory allowance for the defence of honest mistake (as a result of due diligence) about acomplainant's age.

This defence was codified, obviously, in order to prevent the conviction of a morally innocent accused. [96] In response to the applicant's arguments, the Crown says that a statistical increase in violence against women is simply not ameasure of effectiveness respecting s. 33.1. I agree. [97] I would note further that the Crown is not required to demonstrate the effectiveness of the impugned legislative provision. It isenough that the legislative response to a matter of significant import meets the Oakes criteria.

This does not include proof that thelegislation, for example, is reducing drunken violence against women. [98] In response to the argument that extreme intoxication is so rarely pleaded that it could affect only a miniscule number of victims,the Crown's response is twofold.

First, nothing would prevent Parliament from legislating to protect only a small number of victims, andsecond, the "miniscule number" argument cuts both ways - the defence of extreme intoxication would only "save" a miniscule number ofaccused persons from criminal liability. [99] I acknowledge that the conviction of even one 'innocent person' is problematic. I will deal with this proposition, infra. [100] The Crown says further that another salutary benefit of s. 33.1 is the avoidance of a problem.

The Crown suggests that if extremeintoxication is allowed as a defence, many women may be deterred from reporting drunken violence because the word from the courts isthat such behaviour is not criminal. I do not believe such a suggestion is speculative.

I believe, especially in Nunavut and as a matter ofcommon sense, that allowing extreme intoxication as a defence will deter reporting. [101] Similarly, I also agree with Crown counsel that the allowance of extreme intoxication as a defence may influence police andprosecutors with regard to which cases to prosecute. [102] There is a further deleterious effect to the extreme intoxication defence. This has to do with the administration of justice.

InNunavut the number of accused persons who enter pleas of guilty in cases of drunken violence far exceeds the number whom contesttheir cases at trial. [103] It is common that counsel will advise the Court that their client, while acknowledging the facts alleged, has no memory of events.These same defence lawyers have ethical obligations; if the client presents as "blacked out," then the lawyer may need to have the clientprofessionally assessed. In turn, cases may be delayed for significant periods of time, in order that counsel can vet or filter a possible

extreme intoxication defence. [ 104 ] In my view, such routine and lengthy delays will seriously impact the confidence of victims in the Criminal Justice system. It is not merely a practical difficulty which should yield to a more principled approach - namely, that delay in processing cases should yield to the prospect of wrongly convicting a morally innocent person. [ 105 ] This raises the question as to whether a person who drinks themselves to a stupor, and commits

an act of violence, can ever be 'morally innocent' - regardless of whether they are an automaton or unaware what they are doing. Is such a person in the same position, morally, as the accused in Nguyen and Ruzic? [ 106 ] Nguyen was unable to present a defence that he had an honest but mistaken belief about a young complainant's age because the statute ( Criminal Code ) prevented it.

The Court sympathized with the plight of anyone in such a position and was quite clear that absent the availability of such a defence, a morally innocent person might be found guilty. [ 107 ] Similarly in Ruzic, the Court was faced with the unusual and difficult scenario of a woman charged with a criminal offence which she had no realistic moral choice but to commit. The Court sympathized with her plight by expanding upon the traditional and codified notion of compulsion and duress. [ 108 ] These two cases, Nguyen and Ruzic, involve the principle of moral innocence.

In the present case, are we dealing with the principle of moral innocence? [ 109 ] In my view, reasonable people do not agree that a person who drinks himself or herself to a stupor is morally innocent, at all. Reasonable people know as a matter of common sense and life experience that there is at least a connection between intoxication and violence. The

Preamble to s. 33.1 enunciates a clear reflection of this common sense notion. [ 110 ] Similarly, in my view, reasonable people support the "Scots Law" approach that intoxication, even extreme intoxication, should not excuse criminal liability, and that perpetrators of drunken violence should be held accountable. The

Preamble to s. 33.1 is thus a clear reflection of what most reasonable people think in this regard. [ 111 ] In my view, reasonable people do not agree with the prevailing view in Daviault that the criminal mind and the criminal act must be precisely contemporaneous, but rather with the more flexible dissenting opinion that people who drink themselves to a stupor possess a continuing blameworthy state of mind for subsequent violence and should not be considered morally innocent. [ 112 ] In my view Parliament has, both in the

Preamble to s. 33.1 and in the statutory provision itself, set out a clear "standard of care" which attempts to bridge the gap, conceptually, between legal theory and public expectation respecting criminal liability. [Grant, n 2, at para 50 ]. [ 113 ] I acknowledge that the notion of moral blameworthiness can be problematic. For example, one can sympathize with the high school senior who, never having had a drink, achieves an unexpected and extreme state of intoxication at the grad dance after consuming a moderate amount of alcohol.

Perhaps a flexible approach to the question of what constitutes "self-induced" intoxication might be appropriate in such a case. On the other hand, there would appear to be less sympathy for the seasoned alcoholic who believes that they can control the amount they drink, but is mistaken. [ 114 ] Finally, there is the prospect that the defence of extreme intoxication is a dodgy scientific proposition: that intoxication alone can never cause automatism, and, for example, that an alcoholic "black out" is simply mere loss of memory.

There was considerable forensic testimony before the Standing Committee considering Bill C-72 (the precursor to s. 33.1) which called into question the underlying premise of extreme intoxication as a defence (Standing Committee). [ 115 ] Parliament could, of course, have enacted s. 33.1 regardless of whether it accepted any forensic opinion which called into question the empirical validity of extreme intoxication as a defence. I am also aware that this is something which, properly, is a trial issue and not to be considered by me at this stage.

[ 116 ] It is clear, however, from both the

Preamble and the plain wording of s. 33.1, Parliament was of the view that those who perpetrate drunken violence do not exactly "come to equity with clean hands by pleading 'extreme' intoxication as relief.” [ 117 ] I am of the view that the salutary benefits of s. 33.1 far outweigh any deleterious effects. Accordingly, s. 33.1 meets this proportionality requirement of the Oakes analysis. III. CONCLUSION [ 118 ]

Section 33.1 of the Criminal Code is an infringement of SN's constitutionally guaranteed rights under sections 7 and 11 (

d) of the Canadian Charter of Rights and Freedoms . [ 119 ]

Section 33.1 is a demonstrably justifiable limitation of SN's Charter rights pursuant to s. 1 of the Charter. [ 120 ] The constitutional validity of s. 33.1 of the Code is saved by s. 1 of the Charter because it meets the test criteria established by the Supreme Court of Canada in R v Oakes. [ 121 ] The objective of s. 33.1 is of sufficient importance to warrant overriding SN's constitutionally guaranteed rights.

The importance of this objective is clear in Nunavut, where rates of violent crime are considerably higher than the rest of the country. [ 122 ] First, the objective of the legislation, s. 33.1, relates to a concern which is pressing and substantial, namely to provide full benefit of the law's protection, and security of the person, to victims of intoxicated violence, most particularly women and children, and to ensure that the equality rights of women to full participation in society are preserved by holding intoxicated offenders responsible for their actions. [ 123 ] Second, the legislative measure chosen to achieve this objective, s. 33.1, passes the proportionality test: it is rationally connected to the objective.

It impairs the s. 7 and 11 (

d) rights of defendants as little as possible, and the salutary benefits which it is intended to produce far outweigh any deleterious effects of its passage into law. [ 124 ]

Section 33.1 is a fair law, through offering full benefit of the law to victims and makes common sense by holding perpetrators of intoxicated violence accountable. It is a justifiable public policy response to the discreet legal issue of conceptual liability canvassed in Daviault. [ 125 ] This Court affirms the constitutional validity of s. 33.1 of the Criminal Code , and declares that it is of full force and effect. [ 126 ] Accordingly, the defence of extreme intoxication is not available to SN at his trial. Dated at the City of Iqaluit this 13th day of February, 2012 ___________________

Justice N. Sharkey Nunavut Court of Justice _______________________________________________________ Amendment of the Reasons for Judgment Reserved of The Honourable Mr. Justice Sharkey _______________________________________________________ In the frontispiece, the Date Heard has been changed been changed from “November 17, 2012” to “November 17, 2011.” Please replace the amended pages in your hard copy of the judgment.