Should a person accused of sexual assault or other violent crimes be able to use extreme, self-induced intoxication as a defence?
Advocates for victims of sexual violence are reeling after an Ontario Court of Appeal ruling on June 2 found that a law passed in 1995 that bars those accused of sexual assault and other violent crimes from using extreme intoxication as a defence is unconstitutional and goes against charter rights.
The law was enacted by Parliament in 1995 following public outcry as a result of a 1994 Supreme Court ruling which found that extreme self-induced intoxication resulting in a state of automatism, where the accused acts without conscious thought or intention, could be used as a defence for sexual assault. In response, Parliament passed Bill C-72. The bill amended the Criminal Code (section 33.1) and barred those accused of sexual assault and other violent crimes from using extreme self-induced intoxication as a defence.
That law has been on the books for more than 25 years but on June 3 the Ontario Court of Appeal, in relation to two separate cases, found it violated the Charter of Rights and Freedoms of individuals by, among other things, failing to prove those accused voluntarily committed a crime.
In one case, a high school student took psychedelic mushrooms which led to him killing his father and severely injuring his father’s partner by stabbing her repeatedly. In the other case, a man stated he had tried to kill himself by overdosing on a smoking cessation drug by the name of Wellbutrin. During what he said was a drug-induced psychosis, he stabbed his mother who he thought was an alien. She survived.
Both men were found guilty in trial court and were unable to use automatism as a result of a drug-induced state as a defence. On the appeal, an Ontario Court of Appeal ruling overturned the decision and ordered one of the men to stand trial again while the other, the one who stabbed his mother, was acquitted.
While the court recognized that victims of such attacks are victims, regardless if the act was committed voluntarily or involuntarily, it said, “However, to convict an attacker of offences for which they do not bear the moral fault required by the charter to avoid this outcome is to replace one injustice for another and at an intolerable cost to the core principles that animate criminal liability.”
But those who work with victims of sexual assault say the ruling creates a dangerous precedent.
“It’s a very slippery slope because we know that often an offender will deliberately get intoxicated before they assault,” said Lauren Power, executive director of Muskoka Parry Sound Coordinated Sexual Assault Services.
“These were not sexual assault cases but of course it’s detrimental to sexual violence and prosecution of it is always harmed by things like this,” she said.
Power said the system is already difficult to navigate for victims of sexual assault. “Already the court system does not do well for survivors who report their sexual assaults. Many of the reports to the police never result in charges and then the ones that do, it’s a ten per cent conviction rate on those,” said Power.
A Globe and Mail investigation, the results of which were published in 2017, found that 55 per cent of sexual assault cases reported to Huntsville OPP between 2010 and 2014 were deemed as unfounded.
Huntsville OPP Staff Sergeant John-Paul Graham spoke to council in 2017 on the findings of a subsequent investigation on the matter ordered by the OPP’s then-commissioner Vince Hawkes, and said it was primarily a “coding error”.
In terms of the latest decision by Ontario’s top court, it’s one more issue that deters victims from coming forward, said Power.
“Alcohol is often involved in sexual assault. The thing that’s so difficult right now for us as survivors to hear is that often time women are blamed if they’re drinking, right? ‘What were you thinking, what were you drinking?’ and so women are certainly targeted if they’re drinking and they’re sexually assaulted but what kind of a society is it then if we excuse assaults that are committed under extreme intoxication but we blame the victim if she’s extremely intoxicated. I don’t call this justice, I call this injustice,” she said. “It’s a very discouraging time for sexual violence and justice.”
Doppler reached out to Ontario Member of Provincial Parliament for Parry Sound-Muskoka, Norm Miller, about the issue.
In a written statement, Miller replied: “I can confirm that the Crown will be seeking leave to appeal to the Supreme Court of Canada the decisions in R. v. Chan and R. v. Sullivan. It would be inappropriate to comment further, as the matters are before the Court.”
Read the recent Ontario Court of Appeal decision here.
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The Ontario Court of Appeal is absolutely dead wrong. The law was passed by parliament and is certainly constitutional. Charter rights are not and were never intended to be absolute. We place many limits on the rights and freedoms of individuals to protect the rights and freedoms of others. Individuals must absolutely be held accountable for their actions regardless of what they may have chosen to ingest. If this is ridiculous decision is allowed to stand, someone who gets blind drunk then drives a car into a crowd killing and injuring many will be innocent of all crimes due to lack of any provable intent.
Sometimes the letter of the law may be extended to an illogical conclusion. Pierre Trudeau must be rolling over in his grave to see his landmark legislation so abused. The intent was never to have TWO victims: The intent was to have both the abuser and the victim receive legal representation; and for the Court to arrive at an equitable decision.
Will “roofies” now lead to an automatic conviction of a rapist (in our patriarchal society? Not likely. Don’t you know enough to never leave your drink unattended?
So now we have an absurd law, which encourages drug and alcohol use to excess; as a “get out of jail free” card (in case we break the law); even though the act may have been premeditated beforehand. Wonderful. Bloody wonderful.