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.
There is a lot of misinformation being circulated by the media about the decision in Sullivan & Chan. The decision does not make intoxication a defence to sexual assault. Suggesting that it does is wrong, dangerous & undermines public confidence in the administration of justice.— Stephanie DiGiuseppe (@SDiGiuseppeLaw) June 5, 2020
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.
This means that in the accused has a high hurdle to meet to make out the defence. For example in both Sullivan and Chan the defence was supported by the victims, eye-witnesses, police, hospital records, toxicology reports, and, in the case of Chan, video evidence— Stephanie DiGiuseppe (@SDiGiuseppeLaw) June 5, 2020
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.
The protest seen in the last photo was in response to the acquittal of Henri Daviault, who was accused of sexually assaulting a partially paralyzed woman. He used intoxication as a defence which was later overturned. This public outcry prompted Bill C-72 to be passed in 1995.— Kelsey Wilson (@kelseyleewilson) March 9, 2020
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 lives of women, trans women, and sex workers have value and they deserve justice after surviving sexual assault or violence. This just adds yet another barrier for them.— Dr. Jill Andrew (@JILLSLASTWORD) June 4, 2020
My statement: https://t.co/3LH6nCjW7n#MeToo #BelieveSurvivors #StandWithWomen #TImesUp #onpoli pic.twitter.com/nhfyhdbuBB
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."
BREAKING NEWS: Ontario Court of Appeal rules intoxication can be used as an excuse for sexual assault.— Woman Abuse Council of Toronto (@WomanACT) June 4, 2020
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."
(1/3) Sexual assault and rape are caused by rapists. Not alcohol or drugs or clothes or anything else. ONLY RAPISTS. Shame on the Ontario Court of Appeal for ruling to allow intoxication as a defense in sexual assault or violent crime. Absolutely shameful and disgusting. pic.twitter.com/F66iOVhq2i— Kristin Elisabeth Mundy (@kristinoblak) June 5, 2020
"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."
There is absolutely no excuse for sexual assault. The Attorney-General needs to appeal this decision immediately.— Andrea Horwath (@AndreaHorwath) June 4, 2020
We should be supporting survivors of sexual assault and violent crimes, not making it even harder for them to get justice. https://t.co/7wwDqYfBET
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.
Hear me out. If you intended to be drunk off your ass and then you got in your car and a cop pulled you over you get a DUI. You can’t plead that intoxication made you do it, so why does that work for rape? How exactly do you get drunk enough to take away someone’s right to safety— Madisyn (@maddymccabe_) June 5, 2020
With so many women already anxious to come forward and report sexual assault cases, the new ruling could discourage victims from reporting drunken assault.
Like, I get that this is similar to "not guilty by reasons of temporary insanity" decisions, but with how difficult it is to prosecute sex crimes already, isn't this just going to stack the deck even further against victims?— Dick Splinter, P.I. (@phlogiston4lyfe) June 5, 2020
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.
Now, admittedly I'm from the US so my level of disillusionment with the justice system is on the high end, but what's to stop the first person with enough money to convince doctor to say that they were waaay drunker than their victim?— Dick Splinter, P.I. (@phlogiston4lyfe) June 5, 2020
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."
Please @JustinTrudeau I may not agree with everything you do but please fix whatever joke this new appeal in Ontario is. Intoxication simply CANNOT be an EXCUSE for rape. ????? THE FACT I HAVE TO TWEET THIS???— Sarah Jeffery (@sarahjeffery) June 5, 2020
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.
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