The media has recently highlighted that Justice Nancy Spies, a trial judge of the Superior Court of Justice, recently restored the defence of extreme intoxication in sexual assault cases, which begs the question: what does that actually mean?

Well, in 1994 the Supreme Court of Canada found in a case called R. v. Daviault that “extreme intoxication”, which was defined as a state akin to automatism, or in layman’s terms, when an individual was so drunk they did not know what they were doing, was a defence to sexual assault. The court essentially found that if an individual was extremely intoxicated when they touched someone in a sexual way without consent, they were not guilty of sexual assault.

However, nine months after the Supreme Court released their decision in Daviault, Parliament enacted s. 33.1 of the Criminal Code, with the intent to reverse the impact of Daviault. S. 33.1 eliminated the defence of “extreme intoxication” in sexual assault cases.

In 1999, Madam Justice Wallace of the Superior Court of Justice found in a case called R. v. Dunn that s. 33.1 was unconstitutional, and was accordingly of no force and effect. In other words, she found that the defence of “extreme intoxication” must be available for offences such as sexual assault. Justice Wallace in effect restored the defence.

Since the release of Dunn, different courts have come down on both sides of the issue; some have found that the defence should be available and others have found that it should not. No appellate courts have considered the issue as of yet. In the recent case of R. v. McCaw, Madam Justice Spies found, as did Justice Wallace, that s. 33.1 was of no force and effect such that, as it stands, “extreme intoxication” is a defence to a charge of sexual assault.