Many London, Ont., women’s groups are displeased with what could be seen as a landmark ruling by the Supreme Court of Canada last Friday.
On May 13, the Supreme Court issued a decision to allow criminal defendants in cases involving assault – including sexual assault – to use a defence known as extreme self-induced intoxication.
That means defendants who voluntarily consume intoxicating substances and then assault or interfere with the bodily integrity of another person can avoid conviction if they can prove they were too intoxicated to control their actions.
Under Section 33.1 of the Criminal Code, extreme intoxication cannot be used as a defence in criminal cases where the accused voluntarily ingested the intoxicating substance.
Formally known as non-insane automatism, the term is defined in Canadian law as “a state of unconsciousness that renders a person incapable of consciously controlling their behaviour while in that state.”
The federal government added the provision to the Criminal Code in 1995 with concern “that self-induced intoxication may be used socially and legally to excuse violence, particularly violence against women and children.”
However, the court’s ruling declared that section unconstitutional, saying it conflicts with and violates the Charter of Rights and Freedoms because it is too broad.
This led to a unanimous nine-judge vote to declare the law unconstitutional.
“The Criminal Code for a long time prohibited the use of extreme intoxication as a defence, and for this to make its way all the way to the Supreme Court and for all nine judges to decide unanimously that it is a viable defence now really throws the criminal justice system into some confusion as to where this is going to go,” said Jim Dean of Jim Dean Law Professional Cooperation in London.
Dean explained that cases will still be determined and explored individually in order to balance the victims’ rights, the defendants’ rights, and the administration of justice under the charter.
“The defence is available; it doesn’t mean it’s going to fly in every case, or in the majority of cases, but it certainly does try to balance offenders’ row or accused individuals’ rights,” said Dean.
Jennifer Dunn, executive director of the London Abused Women’s Centre (LAWC), said the organization does not agree with the Supreme Court’s decision.
“Women are already disproportionately affected when it comes to assault and sexual assault so this will affect them tenfold,” said Dunn. “To be able to use that as an excuse and potentially not be convicted for their crimes is absolutely absurd.”
According to Dunn, intoxicating substances, such as alcohol, are not always the cause of abuse or assault, saying it can be “an aggravating factor.”
Anna Lise Trudell, manager of marketing, education, training and research at Anova, says about 50 per cent of sexual assaults involve the use of alcohol and that the extreme self-induced intoxication defence is worrisome.
“When we think about a possible comparator, if you drink and drive and you harm somebody, you are responsible for those actions,” said Trudell. “There seems to be this odd double standard in particular to sexual assaults and sexual violence.”
The executive director of Changing Ways, a behavioural program focused on working with men who cause harm in their families, in their intimate relationships or to their children, says “decisions like these create a void, which becomes problematic for survivors of assault.”
“When it comes in partner with violence and sexual violence, I think too often the government creates these sorts of political blanket legislations instead of actually looking at what issues are involved in this,” said Tim Kelly. “They have to look at this and be paying attention to how things are being interpreted and how they’re being implemented.”
Trudell highlighted that the Supreme Court suggested that Parliament go back and look at “narrowing down” the legislation.
“They did see the need to acknowledge that if somebody drinks or takes any sort of substance, and notably understands the impact that that will have on someone, then on some level they should be responsible for the actions,” said Trudell.
Dean says the Supreme Court’s decision is being misinterpreted.
“I think people are looking at it as you can get drunk and do anything you want. That’s not the case and that’s certainly not where this is going,” Dean said. “I expect the Crowns would fight that tooth and nail on any attempt to bring up that defence. But there will be some that will go through because there are some individuals who become intoxicated and would otherwise do things they wouldn’t normally do.”
Dean pointed out that “in today’s system, if you become intoxicated and commit a crime, you’re guilty. It removes that presumption of innocence for an intoxicated individual who wouldn’t have had the intent to commit the offence otherwise.”
“Just like any case, it has to have legitimacy and there has to be some merit in the argument.”
— with files from Global News’ Amanda Connolly.