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Canada Judge reinstates controversial drunkenness defence in sex assault case

An RCMP officer performs a breathalyzer test on a driver during a roadside check in Surrey, B.C., just before midnight on Friday September 24, 2010. The woman blew .05 and received an immediate three-day driving ban and a $200 fine. Strict new drunk-driving laws, now considered to be the toughest in the country, took effect in B.C. this week.

DARRYL DYCK/The Canadian Press

A judge has reopened a major legal controversy by ruling that accused people can claim they were too drunk to be found culpable of committing crimes.

Presiding over a sexual assault case in Southwestern Ontario, Mr. Justice Terrence Patterson of the Superior Court of Ontario ruled that Parliament violated the Charter of Rights with a 1995 law that prohibits the so-called defence of excessive intoxication.

The ruling opened the door for Carl Frederick Fleming, 62, to argue that he was too drunk to appreciate his actions when he sexually assaulted a St. Thomas, Ont., woman in 2009.

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In a bizarre twist, it was at least the tenth time that a judge has struck down the contentious law in the past 15 years. The rulings have created an extremely unusual legal anomaly - a law that remains in force despite being consistently found unconstitutional.

The controversy over the defence dates back to 1994, when the Supreme Court of Canada ignited a public furor by finding it legitimate in the case of R. v. Daviault. The court set aside Henri Daviault's conviction for sexually assaulting a 65-year-old woman in a wheelchair.

Soon afterward, several men were acquitted of beatings and sexual assault based on the judgment. Enraged editorialists and politicians referred to the defence as a "licence to rape," while feminists and victim advocates condemned it as a get-out-of-jail-free card for criminals who drank themselves into a stupor.

"I think it inflamed the public because these are issues of moral culpability," University of Ottawa law professor Elizabeth Sheehy recalled of the controversy. "They are decisions that touch ordinary Canadians and which they can grasp."

A year after the Daviault ruling, Parliament outlawed the defence, explicitly overruling the Supreme Court.

"Canadians hold a strong moral view that people who commit violent acts against others while voluntarily drunk should be held criminally responsible for their actions," justice minister Allan Rock said at the time.

In the decisions since then where judges have struck down the legislation, each instance attracted little attention and was not appealed. The upshot is that a law that is consistently found unconstitutional remains in force, waiting for appellate courts to issue binding authority on the matter.

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Greg Lafontaine, a Toronto defence lawyer who acted in one of the constitutional challenges, said it is extremely rare for a law to be struck down repeatedly without its validity being decided by a higher court.

"It is arguable that the issue is actually settled, but the practical reality is that, case in and case out, the defence bar has to go through the expense of showing the unconstitutionality of the section," he said.

Mr. Lafontaine noted that in virtually every case where Parliament's prohibition was struck down, a judge or jury went on to reject the defence evidence and convict the accused - as happened earlier this week in the Fleming case. This is in marked contrast to the spate of acquittals that followed the Daviault decision.

"Judges may be a bit leery of finding that the defence is [successful]because they know the kind of outcry that would prompt," Prof. Sheehy observed.

However, she said, the anomaly must be cleared up. She said it is entirely possible that prosecutors are dropping cases where they anticipate the defence will be employed, rather than risk having the law struck down yet again.

Mr. Lafontaine said that, once an appeal is heard, it will become obvious that the law was an overreaction to a defence that very rarely succeeds.

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"Despite all the caterwauling, about three guys have been acquitted in 12 years," Mr. Lafontaine said. "Is that an epidemic? Creating legislation that rolled back peoples' Charter rights just wasn't justified. It really was a tempest in a teapot."

Robert Upsdell, a lawyer who represented Mr. Fleming, noted that the Supreme Court explicitly predicted in its Daviault ruling that the defence of excessive intoxication would rarely succeed.

"I am beginning to think that may be never," Mr. Upsdell said.

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