Addiction and the Defence Gap in Canadian Criminal Law

Featured in Robson Crim

49 minutes ago

7 min read

By: Meadow Besson and Ailish O’Shea

Introduction

More than 40% of crimes committed in Canada are linked to substance use. This excludes offences involving driving under the influence or violations of the Controlled Drugs and Substances Act.^[i] Addiction has a profound impact on Canada’s criminal justice system. Individuals who struggle with addiction are suffering from a mental illness; they are not necessarily consciously choosing to use drugs or alcohol each day but are often compelled by their condition. The justice system fails to address the needs of people with addiction issues, leading to the over criminalization of addiction in Canada.

This post argues that the amendment to s. 33.1 of the Criminal Code,^[ii] Bill C-28, creates a gap in the system for people with addiction. It will examine how the amendments to s. 33.1 of the Criminal Code^[iii] limit the defences available to people with addiction and how the mental health defence also does not include addiction. It will also analyze the objective test used in cases of criminal negligence and the implications that over criminalization of addiction has on our system.

Extreme Intoxication and Bill C-28

Self-induced extreme intoxication as a defence to violent offences has been a recurrent point of contention in the Canadian criminal justice system. In 1995, Parliament enacted section 33.1 of the Criminal Code to eliminate the defence of self-induced extreme intoxication for violent, general intent offences.^[iv] The purpose of s. 33.1 was to prevent perpetrators from using the extreme intoxication defence to avoid conviction, specifically where intoxication was self-induced.^[v] Section 33.1 enabled the Crown to convict individuals without proof of the minimum requirements of general intent or voluntary conduct.^[vi]

Over time, the constitutionality of section 33.1 was debated, specifically in terms of how it violated sections 7 and 11(d) of the Canadian Charter of Rights and Freedoms (the “Charter”).^[vii] In the Supreme Court case of R v Brown, s. 33.1 was ultimately found to be unconstitutional.^[viii] This case, among others, led to the introduction of Bill C-28, which maintains the purpose of limiting the use of the extreme intoxication defence.^[ix] The central goal of the amendment to s. 33.1 was to address the concern of finding individuals criminally responsible in cases where extreme intoxication resulted in circumstances that could not have been reasonably predicted.^[x] Bill C-28 ensures that individuals will be held criminally liable when they violently harm others as a result of self-induced extreme intoxication, specifically where there was a foreseeable risk of this harm when the individual consumed the intoxicant.^[xi]

The Impact of Bill C-28

The question of the constitutionality of s. 33.1, coupled with Parliament’s intent to close a gap in the law, ultimately led to the introduction of Bill C-28.^[xii] Despite the intention of the amendment and what it sets out to achieve, it can be argued that there remains an untouched issue in this amendment, specifically in terms of how the bill impacts individuals dealing with substance abuse. The bill aims to provide some individuals protection through enabling the use of the self-induced extreme intoxication defence, particularly for individuals who find themselves accused of violent offences in which a reasonable person could not have foreseen.^[xiii] With that said, individuals with addiction issues may through the cracks, as this amendment will protect only those whose conduct is consistent with that of a reasonable person when consuming intoxicating substances.^[xiv]

In the context of using this particular defence, it is a fair judgment to say that someone suffering from substance abuse will likely be found to have departed markedly from what a reasonable person would do at the time of consuming intoxicating substances, as addicts typically consume intoxicants with intent and knowledge of the subsequent outcomes. Therefore, if an individual with an addiction is accused of a general intent crime and was incapable of acting voluntarily or of having a guilty mind due to a state of extreme intoxication, the defence laid out in the amended s. 33.1 will be rendered unavailable. The Crown will be able to prove that the accused’s conduct departed markedly from that of a reasonable person when they consumed the intoxicants.

Addiction and the NCRMD Defence

Since Bill C-28 limits the available defences for individuals struggling with addiction, such individuals might consider invoking the defence of Not Criminally Responsible on account of Mental Disorder (NCRMD).^[xv] According to the Criminal Code, the accused may claim NCRMD if they can prove, beyond a reasonable doubt, that they were suffering from a mental disorder that made them unaware of their actions.^[xvi]

However, case law indicates that individuals with addiction issues generally cannot rely on this defence. In R v Bouchard-Lebrun,^[xvii] the accused assaulted two individuals while in an intoxicated state. The Supreme Court of Canada (SCC) ruled that self-induced intoxication is not eligible for the NCRMD defence.^[xviii] This precedent establishes that individuals who become intoxicated through their own actions cannot claim NCRMD, as their impaired state is self-inflicted. As Lawrence explained before the Standing Senate Committee on Legal and Constitutional Affairs, “if the answer is no, that the psychosis is exclusively the product of substance abuse, then there is no defence in this country.”^[xix]

Without access to the NCRMD defence, individuals struggling with addiction may be left without a defence against criminal charges. It is important that members of society are held accountable for their actions; addiction is not a mere excuse to avoid legal responsibility. However, the view of this blog is that addiction is not an option, but rather a mental health condition which deserves recognition from the criminal justice system, whether that is through incorporating it into the NCRMD defence, or considering it elsewhere.

The Reasonable Person Standard and the Objective Foreseeability

The Criminal Code states that the court will consider whether there was an objective foreseeability risk when an accused consumed intoxicating substances, and will look to the reasonable person standard when determining whether the accused departed markedly prior to consuming the intoxicants.^[xx] These aspects of the Criminal Code ignore the complexities of addiction by failing to recognize that individuals who consume intoxicants may be driven by a disorder rather than by a simple choice that can be characterized as a “marked departure.” The reasonable person test is of particular concern, as the “reasonable person” in the court's eyes is not an addict who is suffering from a mental condition. What this means is that, when determining whether the accused has departed markedly from that of a reasonable person, the answer will always be in the affirmative, which leaves this defence entirely unavailable to individuals with substance abuse addictions.

Furthermore, a test of objective foreseeability omits the subjective experience of individuals with addictions when evaluating foreseeable risks and fails to capture what they may be experiencing at the time of consuming an intoxicating substance. The test of objective foreseeability and the standard of a reasonable person may therefore result in the conviction of individuals who do not have a guilty mind at the time of an offence but are nevertheless convicted because there is no defence available to them. A future consideration could look at how s. 33.1 might be modified to incorporate the subjective experiences of addicts and recognize how addiction as a mental condition impacts individual’s actions and behaviours.

Rehabilitation and the Over-Criminalization of Addiction

The strain placed on the Canadian legal system is a significant reason to consider alternative approaches for individuals with addiction who are accused of a crime. People suffering from addiction have a higher chance of reoffending as the Canadian Mental Health Association states, “[o]nce arrested and convicted, persons with mental illness are more likely to be arrested and detained again, repeating the cycle.”^[xxi] Individuals struggling with addiction often lack the ability to recognize their need to stop abusing substances, making it significantly harder for them to avoid repeating similar mistakes. Rehabilitation can help provide an opportunity for addicts to gain the support and treatment they need to become functioning members of society.

Research from the Canadian Centre on Substance use and Addiction^[xxii] highlights how the benefits of rehabilitation extend to the judicial system. In a survey comparing participants' lives before and after recovery, 42.3% reported having been arrested while experiencing substance abuse, whereas only 2.3% reported being arrested once entering recovery.^[xxiii] Once in recovery, individuals who previously struggled with addiction pose a far lower risk to the general public and to our legal system. There is an obvious overrepresentation of mental illness in the criminal justice system and the lack of defences available to them can be understood as a major contributing factor.

Conclusion

While the introduction of Bill C-28 was necessary, and affirmed the unconstitutionality of s. 33.1, it is evident that it is in further need of modification. As discussed above, the criminal justice system leaves almost no options for individuals who suffer from substance abuse to defend themselves. Today, the law views individuals with addition as making a willing choice to consume substances and characterizes them as departing from the standard of a reasonable person, which ignores the nuances of addiction. Self-inflicted intoxication being excluded from the NCRMD defence emphasizes yet another avenue that is made unavailable to individuals suffering from addiction.

Moving forward, considering the subjective realities of everyone will be useful in avoiding the over criminalization of addicts in the justice system. Whether addiction is considered within the NCRMD defence or addressed in s. 33.1 through a future amendment, the issue at hand is that addiction needs to be more broadly recognized in the criminal justice system. Addressing this issue would ideally lessen the consistent labeling of addicts as criminals, and in turn, lessen the over criminalization of addicts.

Image Description: A person in a courtroom, overwhelmed with emotion, covers their face with their hands, surrounded by an attentive audience during a tense moment in the proceedings.

Endnotes:

^[i]Department of Justice Canada, “Proportion of crimes associated with substance use” (last modified 9 July 2024), online: <canada.ca/en/correctional-service/corporate/library/research/research-brief/19-13.html> [perma.cc/QMZ9-PJYP].

^[ii] Criminal Code, RSC 1985, c C-46, s 33.1

^[iii] Department of Justice Canada, “Changes to section 33.1 of the Criminal Code on self-induced extreme intoxication (last modified 3 March 2025), online: <justice.gc.ca/eng/csj-sjc/pl/sei-ive/index.html> [perma.cc/J898-8MM7].

^[iv] Ibid.

^[v] Michelle S. Lawrence, “Self-Induced Extreme Intoxication: Brown and Section 33.1 of the Criminal Code” (2024) 115:1 SCLR 259 at 259.

^[vi] Ibid at 265–66.

^[vii] Ibid at 259.

^[viii] Ibid at 260.

^[ix] Ibid at 261.

^[x] Department of Justice Canada, supra note iii.

^[xi] Ibid.

^[xii] Ibid.

^[xiii] Lawrence, supra note v at 269.

^[xiv] See Criminal Code, supra note ii at s 33.1(1)(b).

^[xv] Ibid at s 16(1).

^[xvi] Ibid.

^[xvii] R v Bouchard-Lebrun, 2011 SCC 58.

^[xviii] Ibid at para 84.

^[xix] Canada, Parliament, Senate, Standing Senate Committee on Legal and Constitutional Affairs Evidence, 44^th Parliament, 1st Sess, No 35 (8 December 2022) at 28 (Lawrence)

^[xx] Criminal Code, supra note ii at s 33.1(1)(b).

^[xxi] Canadian Mental Health Association, “Criminalization of Mental Illness” (March 2005), online (pdf): <publicsafety.gc.ca/lbrr/archives/cnmcs-plcng/cn34078-2005-2-eng.pdf> [perma.cc/T29E-22Q6] at 3.