The "extreme intoxication defence" is being contested (yet) again

I neglected to write about it at the time, but I was gob-smacked recently when an Ontario Court of Appeal passed down a ruling that turned decades of law on its head. Ontario's top court ruled last week in two separate cases that excessive drunkenness could indeed be used as a defence for charges of violence, including sexual assault and even murder.
This is despite the existence of Section 33.1 of the Criminal Code, which was brought in by the then Liberal government in 1995 specifically to disallow such a defence. This law was enacted in response to the uproar following a controversial decision by the Supreme Court of Canada in 1994, where a 73-year old man sexually assaulted a 65-year old woman in a wheelchair, but claimed that his extreme drunkenness made him not responsible for his actions.

• The Ontario Court of Appeal ruled 3-0 this last week that this revised section of the Criminal Code is unconstitutional, and so the defence of "extreme intoxication akin to automatism" should be allowed. The appeal court's justification is that the law violates a basic norm of Western criminal justice systems, and protected by the Canadian Charter of Rights, which requires that "voluntariness is an element of every criminal offence", i.e. no-one can be convicted for conduct that is not actively willed. Therefore, if someone is so drunk that they are operating effectively as an automaton, without free will, then they cannot be held responsible for a crime, whatever it might be.

My initial feeling was that "that way madness lies", and that to allow drunkenness as a defence would lead to chaos and a lot of unanswered crimes, particularly against women. But when you consider it in the abstract, you can see the argument that a crime can only be a crime if the person knows what he or she is doing (in the same way as someone with severe psychological or mental problems can not be held responsible for their criminal actions, however unfair that may sometimes seem).
I think on balance my vote still goes in favour of protecting the innocent victim more than the perpetrator who chose to get blind drunk and assault someone. Anything else just seem "wrong". Left-leaning parties like the NDP and various women's groups concur. But, on reflection, I do see that this is not a slam-dunk decision. Even the Canadian Civil Liberties Association has come down on the side of allowing the claim, which surprised me a little, largely on the grounds that the onus of proof needed to show such a severe level of drunkenness will be a high one. They call it a "rarely used provision" and "not this widespread systemic concern", but still....
Anyway, after an appeal of the appeal, the ball (so to speak) is back in the Court, and it is the Supreme Court of Canada, once again, that will need to make a final decision on this knotty problem. Good luck to them, I say.