ontario intoxication

People furious after Ontario court implies intoxication can be used as defence for sexual assault

The Ontario Court of Appeal ruled on Wednesday that self-induced intoxication may now be considered a lawful defence for violent crimes such as sexual assault in certain cases, sparking outrage across Canada.

Justices David Paciocco, David Watt and Peter Lauwers found that a person must act voluntarily to commit a crime.

The court said that to "convict an attacker of offences for which they do not bear the moral fault" is to "replace one injustice for another and at an intolerable cost to the core principles that animate criminal liability."

However, lawyers involved in the case argue that the situation is complex, given that the case in question — Sullivan & Chan (David Sullivan and Thomas Chan) — was related to a non-sexual assault case in which two men, both high on drugs, either killed or injured close relatives.

Ontario's new court ruling applies solely to a very small proportion of offenders that have entered a state of automatism, where their consciousness was grossly impaired.

In these cases, the defence must be able to prove that the accused acted involuntarily by providing a medical expert, as well as additional proof such as toxicology reports and video evidence.

However, the difference in crimes hasn't stopped many Canadians from understandably worrying about the implications that the ruling has for sexual assault victims.

Ontario's decision limits the effect of section 33.1 of the Criminal Code, which states that a person is "criminally at fault" if they assault someone while in a state of self-induced intoxication.

In that sense, the court opens up the possibility of self-induced intoxication being used as a defence in certain cases, some of which could potentially be sexual assault.

Parliament enacted this section of the code after the Supreme Court was asked to consider an issue related to the trial of a chronic alcoholic, Henri Daviault, who had sexually assaulted a 65-year-old woman in a wheelchair while in a state of extreme drunkenness.

The Supreme Court held that the absence of a defence on the basis of certain types of intoxication violated the charter, and sent the case back to retrial, sparking backlash from the public.

MPP for Toronto—St Paul's Jill Andrew has been particularly vocal about her objections to this week's court ruling.

"It is already incredibly difficult for survivors of sexual assault to come forward, and to get the justice they deserve for the heinous crimes committed against them," Andrew said in a statement.

"Anything that makes it even more difficult for survivors of sexual assault and violent crimes to get that justice is a painful step backwards."

On Wednesday, Andrew launched a petition asking the Ontario Ministry of the Attorney-General to reverse the appeal, which has racked up close to 125,000 signatures as of Friday.

The Woman Abuse Council of Toronto have also made their objections to the ruling clear on social media, writing on Twitter that the ruling constitutes "systematic and institutional violence against women."

Hundreds of Canadians have taken to social media to express their discontentment with the ruling.

"So the Ontario Court of Appeal passed a ruling that intoxication is now an excuse for sexual assault," one person wrote. "This is messed up beyond words. If this makes you as upset as I am, sign this petition to appeal this ruling and help in expunging it."

"I absolutely cannot believe this is real but I’ll be dammed if I don’t do anything about it," another added.

"This decision sends a dangerous message that people can avoid accountability for their acts of violence against others through intoxication," yet another wrote. "Ontario's AG must appeal the decision making voluntary intoxication a legitimate defence in sexual assault cases."

"As an Ontario citizen, as a woman, and as a human being, I am disgusted and horrified by this ruling," one person said. "Please, please sign this petition to appeal the decision."

"Intoxication is now a legal defence for rapists in Canada, but not for drunk drivers," another added. "Number 1,455,723 why survivors don’t report."

The Ontario court found that it is "not appropriate to transplant the mental element from the act of consuming intoxicants for the mental element required by the offence charged."

In other words, the court believes that choosing to enter a state of extreme intoxication can't be conflated with choosing to commit a crime such as murder or sexual assault.

But the consequences of that decision are, as some Canadians have pointed out, a slippery slope.

With so many women already anxious to come forward and report sexual assault cases, the new ruling could discourage victims from reporting drunken assault.

There's also the fear that the defence will be able to produce a "hired gun" medical expert, who will vouch that the accused was in a far more extreme state of intoxication than they actually were.

The court acknowledged several benefits of upholding section 33.1 in the released document, including the fact that it sends "a strong message of deterrence to the public that this conduct will not be tolerated."

In 2018, Superior Court Justice Nancy Spies ruled that people accused of sexual assault in Ontario were allowed to use excessive intoxication as a defence against criminal charges, although the offender in question was found guilty of sexual assault.

Lead photo by

Billy Wilson

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