[OptimalTates]

Originally Posted by CaptainYooh

However; I do have a huge problem with no automatic minimum level of guilt/punishment set by the SC when this defense is used successfully. It simply must not result in full acquittal.

That's not something the SC can do. All they can do is find that the section was or was not constitutional. They can't go and start making their own laws.

They can, however, suggest them:

Alternatively, a path to liability for the underlying violent offence might be based on a criminal negligence standard that would allow the trier of fact to consider whether a loss of control and bodily harm were both reasonably foreseeable at the time of intoxication. This latter option could allow an accused to be convicted for the underlying violent act and not simply negligent or dangerous intoxication while achieving the minimum objective fault standard required by the Constitution.

Some of these options would be manifestly fairer to the accused while achieving some, if not all, of Parliament’s objectives. I am mindful that it is not the role of the courts to set social policy, much less draft legislation for Parliament, as courts are not institutionally designed for these tasks. But it is relevant to the analysis that follows that, as noted by the majority in Daviault itself (p. 100) and by the majority of the Court of Appeal in Sullivan (para. 132), it would likely be open to Parliament to establish a stand‑alone offence of criminal intoxication. Others, including the voir dire judge in this very case (2019 ABQB 770, at para. 80 (CanLII)), have suggested liability for the underlying offence would be possible if the legal standard of criminal negligence required proof that both of the risks of a loss of control and of the harm that follows were reasonably foreseeable. In either of these ways, Parliament would be enacting a law rooted in a “moral instinct” that says a person who chooses to become extremely intoxicated may fairly be held responsible for creating a situation where they threaten the physical integrity of others (I borrow the phrase “moral instinct” from Professors M. Plaxton and C. Mathen, “What’s Right With Section 33.1” (2021), 25 Can. Crim. L.R. 255, at p. 257).