R v Brown

Section 33.1 prevented reliance on extreme self-induced intoxication as a defence to general-intent violent offences. The SCC struck it down for violating ss.7 and 11(d) — punishing without voluntariness or fault offends fundamental justice. Parliament re-enacted a narrower replacement.

Brown, while on a magic-mushroom binge, broke into a stranger's home and assaulted her with a broom handle. He had no memory of the assault. He sought to rely on extreme intoxication akin to automatism. Section 33.1 barred the defence.

Does s.33.1 violate ss.7 and 11(d) of the Charter? If so, is it saved by s.1?

Yes; not saved.

Convicting an accused of a general-intent violent offence on the basis of self-induced intoxication, without proof of voluntariness or fault for the violent act, violates s.7 and s.11(d). The provision's objective (protecting victims of intoxicated violence) is pressing and substantial, but the chosen means lack rational connection because the provision makes the accused liable for the violent act itself, not for becoming intoxicated.

Kasirer J emphasised the marked-departure principle: criminal liability requires voluntariness and fault. Parliament could constitutionally criminalise the act of becoming dangerously intoxicated where harm follows, but cannot deem the violent act itself voluntary or culpable when it was not.

Parliament responded with Bill C-28 (2022), enacting a new s.33.1 framing liability around criminal negligence in becoming extremely intoxicated. The new provision's constitutionality is being litigated. Brown is the modern leading case on automatism and general-intent crimes.

R v Brown, 2022 SCC 18, [2022] 1 SCR 506.

Wagner CJ, Moldaver J, Karakatsanis J, Côté J, Brown J, Rowe J, Martin J, Kasirer J, Jamal J