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Vanshika Dhawan is a law student at the University of Toronto, whose research has focused on sexual assault and survivor discourses.

In my first-year criminal-law class, I was posed this question: What is the goal of the Canadian criminal justice system? I didn’t have a good answer then, and I still don’t. But what I have come to understand is that our system was never built to support survivors of sexual violence.

Criminal cases, including sexual assault, are fundamentally about harm caused to society – not the victim. A complainant in a criminal case is a participant. Their best interests are not always aligned with the Crown’s, but often the only definition of justice presented to survivors is a greater number of convictions.

This was the goal of Section 33.1 of the Criminal Code, enacted in 1995, which prohibited the use of the defence of extreme intoxication akin to automatism. This was Parliament’s response to the public outrage following the Supreme Court of Canada’s ruling in R v Daviault, a sexual-assault case wherein the incorrect but understandable takeaway was that the court, as one Toronto Star letter-writer said at the time, “gave men an excuse to get drunk and rape women.”

But in June, 2020, the Ontario Court of Appeal struck down Section 33.1 as unconstitutional in R v Sullivan and R v Chan. Likely due to the legacy of Daviault, these cases, despite being physical assault cases, were situated in the context of sexual assault. The ensuing outrage, over the notion that drunkenness could now be a defence to sexual assault, was ill-placed – but was plausible enough to rile up social media. Last fall, those cases – along with R v Brown, which engaged the same issues – were heard at the Supreme Court, which will make a decision on Section 33.1 soon.

The specifics of the cases matter. Thomas Chan and David Sullivan experienced drug-induced psychoses, as a result of “magic mushrooms” and antidepressant overdose, respectively. And at Matthew Brown’s trial, an expert in psychology deemed his behaviour to be consistent with “psilocybin intoxication delirium acute hyperactivity,” a recognized condition in the DSM-5. This is the extreme intoxication we are talking about – and should not be conflated with the intoxication caused by alcohol, which cannot cause this state.

Our understanding of how our neurons respond to both drugs and neurotransmitters has come a long way since 1995. Medicine does not distinguish between psychosis caused by mental illness and psychosis caused by intoxication. The treatment may differ, but the state is the same: the person is disconnected from reality.

Unsurprisingly, the law has been slow to adapt. The legal distinction is arguably arbitrary, based on the archaic belief that self-intoxication is a moral failing. Perhaps these men are “guilty” of consuming drugs – but then, so are the many Canadians who use hallucinogens and attempt suicide with prescription antidepressants.

That these men acted unintentionally in the throes of psychoses does not negate the harm to their victims. But as Ontario Court of Appeal Justice David Paciocco so aptly stated, to convict would be to “replace one injustice for another.” In doing right by morally innocent people like them – none of whom were accused of sexual assault – the court is not inherently sidelining survivors.

But while I found myself endlessly repeating this to fellow advocates for survivors of sexual and gender-based violence, it felt like spraying droplets in the face of an ocean of misinformation.

Framing Mr. Chan and Mr. Sullivan’s cases in the lens of such violence was careless. Summarizing complex legal concepts and individuals’ complex lives into headlines will inevitably lead to public misunderstanding. Lacking nuance, it was reasonable to conclude that extreme intoxication referred to drunkenness, rather than the legal definition.

But this misunderstanding only risks exacerbating the distrust in the justice system that too many survivors rightly feel – damage that can’t be undone by correcting the record. Regardless of what the Supreme Court decides, I fear we have not learned from our mistakes, and survivors will once again suffer the most harm.

Intoxication and sexual and gender-based violence remain heavily correlated, but these can and should be addressed by Parliament without being overly broad, for instance by exclusively targeting alcohol intoxication, legislating the defence of toxic psychosis, and/or creating a new offence – as the Supreme Court itself suggested in 1995. Addressing this issue need not come at the expense of survivors.

Surely, punishing the morally innocent cannot be a goal of the justice system either. At least, it shouldn’t be. As for justice, I’m not sure what it looks like for survivors. As a queer, brown, disabled woman, I’m not convinced the answer is further incarceration. Perhaps this is a luxury of my idealistic youth, but I’d like to think we can combat sexual violence without weaponizing state violence.

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