Monday, March 1, 2021
Michael Plaxton and Carissima Mathen (College of Law, University of Saskatchewan and University of Ottawa - Common Law Section) have posted What's Right with Section 33.1 ((2021) Canadian Criminal Law Review (forthcoming)) on SSRN. Here is the abstract:
Section 33.1 has more than its share of critics. This paper reflects on what is right about section 33.1 – or at least the moral instincts behind it. The section articulates, however messily, values that find expression throughout the substantive criminal law, and reflects an abiding parliamentary interest in ensuring that its sexual assault reforms of the 1980s and 1990s are not undermined by the availability of a defence of extreme intoxication. The section promotes those values in an incoherent, constitutionally untenable fashion. But that is not to say that, if the provision is struck down by the Supreme Court, Parliament should simply throw in the proverbial towel. As others, including Paciocco JA in Sullivan; Chan, have observed, there are better, more principled ways to achieve the ends that Parliament sought to achieve with section 33.1: chiefly, to criminalize the reckless or negligent (over-)consumption of alcohol or drugs. The barriers to that approach are not constitutional but political.