By: Geoff Read

The federal government is losing no time reacting to the Supreme Court of Canada’s decisions in the cases of Brown and Sullivan & Chan that were covered in the last issue.  Bill C-28, sub-nom An Act to amend the Criminal Code (self-induced extreme intoxication), received first reading in Parliament on June 17, 2022.  Minister of Justice David Lametti said “It amends the Criminal Code so that an individual would be held responsible for the violence they commit while in a state of extreme intoxication if they ended up in that state through their own criminal negligence.”  

The Bill is brief – here’s the text:
1 Section 33. 1 of the Criminal Code and the heading before it are replaced by the following:
Self-induced Extreme Intoxication
Offences of violence by negligence

33. 1 (1) A person who, by reason of self-induced extreme intoxication, lacks the general intent or voluntariness ordinarily required to commit an offence referred to in subsection (3), nonetheless commits the offence if
(a) all the other elements of the offence are present; and
(b) before they were in a state of extreme intoxication, they departed markedly from the standard of care expected of a reasonable person in the circumstances with respect to the consumption of intoxicating substances.
Marked departure — foreseeability of risk and other circumstances

(2) For the purposes of determining whether the person departed markedly from the standard of care, the court must consider the objective foreseeability of the risk that the consumption of the intoxicating substances could cause extreme intoxication and lead the person to harm another person. The court must, in making the determination, also consider all relevant circumstances, including anything that the person did to avoid the risk.

(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. 04/07/2022, 00:41 Government Bill (House of Commons) C-28 (44-1) - First Reading - An Act to amend the Criminal Code (self-induced extreme int… 3/3 
Definition of extreme intoxication

(4) In this section, extreme intoxication means intoxication that renders a person unaware of, or incapable of consciously controlling, their behaviour.
The Department of Justice argues that while the defence of extreme intoxication can seldom be used, this is important legislation that closes a gap in the law resulting from these decisions of the Supreme Court.  It seems the motive for this amendment to the Criminal Code is, according to Minister for Women and Gender Equality and Youth Marci Ien,  some public perception that rape and other sex crimes are legal in Canada as long as the perpetrator was intoxicated.  She said that “The extreme intoxication we are talking about is not about being drunk, it’s not about being high. The Supreme Court has clearly said that drunkenness is not a defence to crimes of violence and sexual assault”.  Mr. Lametti further commented that “Being drunk or high is not a defence for committing criminal acts like sexual assault. That was the law before the Supreme Court decision and that remains the law today. And all Canadians need to understand that clearly.”
So, while Criminal Code s. 33.1 unconstitutionally purported to abrogate the defence of self-induced intoxication where there was an element of an assault, or any other interference or threat of interference by a person with the bodily integrity of another person, it would now establish a new offence in the nature of criminal negligence.  

The government won’t have to do anything about the controversial so-called Ghomeshi amendments, since on June 30, 2022, the Supreme Court of Canada recently sustained their constitutionality in the companion cases of JJ and Reddick, cited as R. v. J.J., 2022 SCC 28.  The issue divided the trial and provincial appellate courts across Canada.  It is interesting to reflect on the time and effort spent on it, and the corresponding uncertainty of the law, until this split decision of our highest court.  Not, at 263 pages, light reading or for those with attention deficits, the top judges divided this way according to the communications staff of the Supreme Court of Canada:
Chief Justice Wagner and Justice Moldaver found the record screening process constitutional, with Justices Karakatsanis, Martin, Kasirer and Jamal concurring - they held that sections 278.92 to 278.94 of the Criminal Code are constitutional in their entirety, as they apply to both s. 276 evidence applications and to private record applications;

Justice Brown, dissenting in part, found the record screening process unconstitutional for private records but constitutional for evidence of past sexual activity.
Justice Rowe agreed with Justice Brown, and explained how to make a decision when sections 7 and 11 of the Charter are brought up at the same time; and 
Justice Cote agreed with Justices Brown and Rowe but would have interpreted more narrowly some of the terms in the relevant Criminal Code provisions.

The same source explained that Chief Justice Richard Wagner and Justice Michael Moldaver said the accused’s rights are not violated. The accused’s right to silence is not in issue because they are not forced to testify during the record screening process. Also, the accused’s right to a fair trial does not mean they can receive the most advantageous or beneficial trial possible. Finally, the accused’s right to present and challenge evidence is not unlimited. Ambushing complainants with their own highly private records at trial can be unfair to complainants and may be contrary to the search for truth.   The majority explained that sections 278.92 to 278.94 of the Criminal Code were created to remove barriers preventing sexual assault victims from coming forward. The goal of those sections was to have a process to protect the interests of complainants in their own private documents when an accused has those documents and wants to use them at trial. This process balances the rights and interests of the accused, the complainant, and the public.

Now, with permission of the author, Toronto criminal lawyer Daniel Brown succinctly identified these important highlights of the SCC’s decision:
“Lindsay Board and I have identified a few key takeaways from the ruling for counsel to be mindful of and we are in the process of setting up a zoom session next week to discuss some nuances and opportunities for counsel defending sexual offence cases in the future. 

First and foremost, the Bill C-51 amendments which permit complainant participation in the 276 and 278 process and which require pre-screening of private records in the possession of the defence are constitutional. (Para 13)

As a general practice, 276 and 278 applications should be brought pre-trial though judges maintain discretion to permit these applications to be brought mid-trial when it’s in the interests of justice to do so. (Para 85)

The format of a stage one inquiry into 276 or 278 should be a matter left to the discretion of the presiding judge, in accordance with their trial management powers and may proceed as an application in writing, an oral hearing, or both, as the judge sees fit.  (Para 27)

Motions for direction to determine whether the activity is “other sexual activity” or a record as defined by s.278.1 should generally be dealt with at stage one. (Paras 28-29). There remains a residual discretion to bring a motion for directions before a stage one hearing but it may engage complainant participatory rights whereas a stage 1 inquiry does not permit a complainant to participate. (Paras 103-105)

Complainants have no participatory rights at stage one. Complainants are also not entitled to provide written submissions if the Stage One inquiry proceeds only as a written application.  (Para 89)

Records enumerated in s.278.1 must proceed with an application under 278.93 regardless of their content. (Para 39)

Non enumerated records containing information of an intimate or highly personal nature that is integral to the complainant’s overall physical, psychological or emotional well-being are also captured by 278.1 and are subject to an application under 278.93 (Para 42)

Non enumerated complainant private records will include records containing highly sensitive information about themselves, the disclosure of which can impact on their dignity. The records must “transcen[d] personal inconvenience by reason of the highly sensitive nature of the information that might be revealed” para 45

An approach that categorically excludes certain types of from the record screening regime, regardless of their content is rejected. Ie all text messages (Para 49)

To determine the privacy in a record,  the presiding judge should consider both the content and context of the record. (Para 54)

The types of non-enumerated records or conversations that will attract privacy include, but is not limited to, discussions regarding mental health diagnoses, suicidal ideation, prior physical or sexual abuse, substance abuse or involvement in the child welfare system. Mundane information such as general emotional states, everyday occurrences or general biographical information would typically not give rise to a reasonable expectation of privacy. (paras 55-56)

Complainants may also have a reasonable expectation of privacy in records of an explicit sexual nature that is not covered by s. 276 (for example, explicit communications, videos or photographs of a sexual nature relating to the subject matter of the charge). (Para 71)

When it is unclear whether the evidence is a “record”, counsel should err on the side of caution and initiate Stage One of the record screening process.  (Para 72)

Unlike 276 evidence which also requires the crown to pre-vet the evidence with a judge in advance of trial, the Crown is not bound by the record screening regime when seeking to admit private records relating to complainants. (Para 73)

An application under s.278 must be brought when adducing the content of the private record in defence submissions or the examination and cross‑examination of witnesses. Specifically, under the record screening regime, the accused must screen records when they seek to use information during a hearing that they specifically learned from those records. However - If they have independent knowledge of the information, gathered from sources that do not rely on the complainant’s private records, they may use this information without invoking the record screening regime (Para 76)

Complainant participation and access to the application record: While the complainant has no participatory rights at stage 1 - When the Crown receives the application prior to the Stage One inquiry, it should provide a general description of the nature of the record and of its relevance to an issue at trial to the complainant and/or the complainant’s counsel. (Para 92)

At Stage two - the Crown should typically disclose the contents of the application to the complainant to enable the complainant and/or the complainant’s counsel to prepare for the Stage Two hearing. (Para 93) Importantly, the presiding judge retains the discretion to direct that the application not be disclosed to the complainant or that portions of it be redacted. This may arise based on a party’s or the judge’s own concerns about the impact of disclosure on trial fairness (Para 96)

Similarly, Both the complainant and counsel can attend the entire Stage Two hearing to facilitate meaningful participation. If there are concerns at the Stage Two hearing that a complainant’s attendance would compromise trial fairness, the judge may, in their discretion, exclude the complainant as required. (Para 97)

Complainant’s participation is limited to making oral/written submissions on stage two. They do not have any further participatory rights and they are not permitted to cross examine the accused or lead any of their own evidence. (Para 100)

Complainants also have limited rights to appeal 276 or 278 applications by way of certiorari or appeals directly to the SCC.” 

Many thanks to Daniel and Lindsay Board for that helpful analysis!


None of this sounds too promising for the Defence, especially since the Globe and Mail recently reviewed all sexual-assault cases heard by the Supreme Court since 2014 and finding that they are on the rise during the so-called Me Too era and that defence lawyers have lost 34 consecutive appeals. The story can be found on the Web at  The article references the aformentioned Daniel Brown, a co-author of Prosecuting and Defending Sexual Offence Cases, saying the textbook’s 2017 edition was completely rewritten for 2020, to reflect rapid changes in the law.  He was quoted: 
Lawyers have had to change their advice to clients, Mr. Brown said. “The advice is still ‘if you’re innocent and wrongly convicted, you should appeal your case.’ But also, ‘the courts are going to have very little time for the types of arguments we can raise that demonstrate you were wrongfully convicted.’” 

Geoffrey Read is a sole practitioner in Hamilton. He is certified by the Law Society of Ontario as a Specialist in Criminal Law.

He can be reached at:
20 Hughson Street South, Suite 612
Hamilton, Ontario
L8N 2A1