Federal law on intoxication sex-assault defence unconstitutional: Ontario judge

People are once again allowed to use excessive intoxication as a defence against criminal charges in that province

People accused of sexual assault in Ontario are once again allowed to use excessive intoxication as a defence against criminal charges, a judge has ruled, finding that a federal law preventing such an argument is unconstitutional.

Superior Court Justice Nancy Spies’ ruling relates to a Supreme Court decision established in the early 90s that drew so much ire that Ottawa introduced a law to limit its perceived impact.

That law — section 33.1 of the Criminal Code — has had several detractors over the years but proponents said it was essential to protect women and children from violence perpetrated by those under the influence.

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Spies downplayed that argument in her Aug. 2 decision, contending that the law limited a viable possible line of defence without offering meaningful protection for women.

“Section 33.1’s objective … is not sufficiently pressing and substantial to justify the great damage it does to fair trial interests,” she wrote before affirming that it was “of no force and effect in Ontario.”

Spies’ decision came in support of Cameron McCaw, a Toronto man due to stand trial for sexual assault next month.

According to Spies’ ruling, McCaw wishes to argue that he had consumed so much alcohol on the night of the alleged incident that he was unaware of his actions.

According to allegations contained in her ruling, McCaw allegedly raped the girlfriend of his former roommate after consuming alcohol, marijuana and a “date-rape drug” in July 2015.

His lawyer, Eric Neubauer, filed an application seeking affirmation that Section 33.1 was not in effect in Ontario on the grounds that it violated the Charter of Rights and Freedoms.

Spies ruled in favour of McCaw, and his trial is slated to proceed on Sept. 12. Neubauer declined to comment on the ruling, citing the fact that the matter is still before the court.

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The case at the root of the argument examined by Spies unfolded in 1994 and was resolved in a Supreme Court ruling that came to be known as the Daviault decision.

The country’s top court ruled that Henri Daviault could use extreme intoxication as a defence against charges he sexually assaulted a disabled 65-year-old woman.

Daviault, 72, had consumed up to eight beers and most of a large bottle of brandy. The court ruled Daviault, who was ultimately acquitted, was so drunk he didn’t know what he was doing, and that depriving him of the drunkenness defence would violate the Charter of Rights.

At the time the Supreme Court said it expected the defence would be used only in the ”rarest of cases,” but it was successfully invoked in at least three instances involving alcohol or drugs within months of the ruling.

In 1995, the federal Justice Minister Allan Rock introduced legislation to limit the scope of that defence. It barred the use of a “self-induced intoxication” defence in cases that involved “an element of an assault.”

At the time lawyers predicted charter challenges to the new law. As outlined in Spies’ recent decision, those predictions came to pass with results varying widely by province.

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Spies argued that permitting the Daviault decision to stand “would not have any real impact” on cases involving violence against women, but advocacy organizations strongly disagreed.

Farrah Khan, manager of Ryerson University’s Office of Sexual Violence, said the ruling sends a disturbing message to women who may now feel that perpetrators can drink with impunity.

“It doesn’t allow people to be held accountable for their actions,” Khan said of Spies’ decision. “Instead it gives them an excuse.”

Amanda Dale, executive director of the Barbra Schlifer Commemorative Clinic, which offers legal representation and help to women who have experienced abuse, said the recent decision sees courts taking a backwards step towards “a culture of myths and discrimination” related to sexual assault.

She said she hopes appeal courts will offer some clear guidance on the issue, adding the conflicting points of view send a discouraging message for sexual assault survivors.

“If women needed any other reason not to turn to the law to protect them, this will surely send that message unless it is corrected at the higher court,” she said.

The Canadian Press

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