Feminists say a recent court ruling on intoxication sends the wrong message on sexual assault, and takes society back to a time when judges found ways to excuse violence against women.
A ruling by the Ontario Court of Appeal last week established that if an accused person can show they were in a state of extreme intoxication akin to automatism, they have a defence for violent crimes from sexual assault to murder.
Criminal-defence lawyers say it’s the only just response, and that its importance is overblown.
The 3-0 ruling laid bare deep divides among Canadians, especially on sexual-assault law. Has it been overhyped and misunderstood? If not, is there a middle ground that the courts, and the #MeToo generation, might accept?
The ruling came in two cases: In one, a man tried to kill himself with an overdose of anti-depressants, and then stabbed his mother, stopping only when she said, “I’m your mother.” In the other, a high-school student high on magic mushrooms stabbed his father to death and wounded his father’s partner.
Although neither case involved alcohol or sexual assault, the underlying issue was the same as in a precedent-setting case that involved both.
In 1994, the Supreme Court ruled 6-3 that Henri Daviault, an alcoholic accused of sexually assaulting a 65-year-old woman in a wheelchair, must be allowed to use the defence of extreme intoxication. Such defences, the majority said, would be rare.
In the public uproar that followed, reaction was swift: The Liberal government of Jean Chrétien passed a law months later removing the defence in cases of violent crime.
And this time, too, reaction was immediate. The office of Ontario Attorney-General Doug Downey announced just three days after the ruling – on a Saturday afternoon – that the province will ask the Supreme Court of Canada to hear an appeal. That’s no surprise. A similar ruling by a lower Ontario court two years ago prompted a sexual-assault survivor’s petition garnering 332,000 signatures urging the judge to reverse her decision. (She ultimately found that the man had not shown automatism, and convicted him of sexual assault.)
For Constance Backhouse, a law professor at the University of Ottawa, the appeal-court ruling is deeply worrying.
“The linkages between alcohol and the abuse of women are notorious," she said. “What will the ruling mean for the vast number of women sexually assaulted by intoxicated men? The majority of us never report sexual assault now.”
Elizabeth Sheehy, who also teaches law at the University of Ottawa, says that in the ruling, the court sends a message that the Charter of Rights and Freedoms doesn’t protect women’s safety. “The judgment of the court makes it very difficult for Parliament to ever pass laws to protect women from violence given that the Charter doesn’t seem to have room for women as rights holders.”
Dean Embry, a criminal-defence lawyer in Toronto not involved in the case, said the public has the wrong idea about what the appeal-court ruling means. “This idea that intoxication, being drunk, is now a defence to sexual assault – I think that message is very dangerous. It’s just not the case,” he said.
In almost every sexual-assault case he has been involved in as a defence lawyer, he said, alcohol was a factor, and “I’ve never come anywhere close to considering raising the defence because it is so extraordinary, and so hard to prove.”
In at least 10 previous cases since 1995, however, defence lawyers have challenged the extreme-intoxication law. In four cases, lower courts in British Columbia, Quebec and Nunavut upheld the law; in six, in Ontario and the Northwest Territories, judges ruled it invalid. Extreme intoxication came up in several other cases in which judges presumed the law to be valid.
Why did the Ontario Court of Appeal say the law violated the Constitution?
Because a core principle of Anglo-Canadian justice protected by the Charter of Rights is that no one can be convicted for conduct that is not voluntary, the court said. “The way I always think about it is sleepwalking,” Mr. Embry said. “Someone is moving around, but their mind is in a very real way not functioning.”
Gerry Ferguson, a University of Victoria law professor, is the author of a book that instructs judges on how to discuss cases, including extreme-intoxication ones, with juries. “It’s not tolerable to allow people who get extremely drunk to go out and sexually assault somebody,” he said. Even if the defence is raised just once a year, it’s too often, he added.
He proposes a middle ground, but not the one suggested by the appeal court, which would be to create a new crime called “criminal intoxication." That would fall short, he said, because it could cover things like breaking a window. Any new offence needs to be specific to sexual assault, he said.
So he suggests an offence of sexual assault committed because of criminal negligence, or words to that effect. After all, he said, people get drunk one drink at a time; they make a choice. As manslaughter is to murder – an offence based on negligence, rather than intentional conduct – so would the offence he proposes be to sexual assault.
Rachel Rappaport, a spokeswoman for Justice Minister David Lametti, declined to comment on alternatives to the current law while the case is before the courts.
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