TORONTO — A court ruling allowing people accused of sexual assault or other violent crimes to argue they were so intoxicated they didn’t know what they were doing has angered women’s-rights activists but civil libertarians call the criticism unwarranted.
A decades-old law had banned such a defence but Ontario’s top court this week declared it unconstitutional for trampling on key rights of the accused.
The Women’s Legal Education and Action Fund, which intervened in the case, called the decision a setback for victims, particularly of sexual assault.
“We are dismayed that women’s rights to equality and dignity are not given more adequate treatment,” the organization said on Thursday. “It also risks sending a dangerous message that men can avoid accountability for their acts of violence against women and children through intoxication.”
Cara Zwibel, a director with the Canadian Civil Liberties Association, said the decision clarified the legal situation around use of the intoxication defence. While she sympathized with concerns the ruling would undermine protections for sexual assault victims, she said they were overblown.
“I don’t see it as seriously undermining the rights of victims,” Zwibel said. “This is a rarely used provision; it’s not this widespread, systemic concern.”
At issue was a law the federal government enacted in 1995 amid a backlash over a court ruling that recognized drunkenness could be raised to defend against a sexual assault charge.
The Appeal Court decision setting aside the law came in a pair of separate cases in which two men, both high on drugs, either killed or injured close relatives. Their defence, however, ran afoul of the ban on arguing extreme intoxication.
In overturning their convictions on Wednesday, Justices David Paciocco, David Watt and Peter Lauwers said a person must act voluntarily to commit a crime. While lawmakers might have sought to help victims attain justice, they said the law violated an accused’s rights by holding them accountable for violence they really had no control over.
“It enables the conviction of individuals for acts they do not will,” the court said. “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.”
Megan Stephens, the legal fund’s executive director and co-counsel on the intervention, said the ruling could further discourage women from reporting sexual assault.
“I recognize the importance of protecting the constitutional rights of all,” Stephens said. “It is discouraging, however, that the security interests and equality rights of women and children receive only brief reference by the court given that they are disproportionately victimized by intoxicated offenders.”
Jill Presser, a lawyer who argued the case for the civil liberties association, called the criticism unfounded. The justices, she said, were grappling with a highly complex legal flashpoint in which preventing wrongful convictions bumps up against the right of vulnerable Canadians to be free from violence.
“That’s a really difficult meeting point in the law,” Presser said. “While the bulk of the judgment doesn’t focus on the victim, that animates the entire decision.”
The decision still leaves the onus on an accused to come up with expert and other evidence to prove they were in a state of automatism to raise the intoxication defence successfully, Zwibel said. Simply claiming to have been drunk wouldn’t cut it.
Provincial New Democrat politician Jill Andrew called on the Ministry of the Attorney General to try to fight the ruling. The Supreme Court of Canada, she said, should weigh the impact “on the lives of women, trans women and sex workers, their bodies, and the justice they deserve after surviving sexual assault or violence.”
This report by The Canadian Press was first published on June 4, 2020.
Colin Perkel, The Canadian Press