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.

READ MORE: #MeToo at work – BC women share common sexual assaults

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.

RELATED: Judges learn how to handle sex assault cases

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.

READ MORE: RCMP criticized for jailing drunk sex assault victim

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

Like us on Facebook and follow us on Twitter.

Just Posted

Surrey councillors say they’ve now seen policing transition plan

Locke and Hundial decline to share details of the plan, repeat calls for its release to residents

RCMP target speeders in White Rock, Surrey

Officers throughout the province launch Swoop campaign

Roadside device to weed out THC can’t detect impairment, lawyer says

‘This fact alone is likely to have serious implications for Canadians’ Charter Rights,’ lawyer Sarah Leamon warns

OUR VIEW: Challenger Baseball program in Surrey hits a home run

Challenger provides disabled athletes an opportunity to play baseball in an inclusive setting

Final bout of Gypsy moth spraying in Surrey bumped up to Thursday, May 23

Again, they’re targeting 62 hectares area near Highway 1 and Port Mann Bridge from sunrise to 7:30 a.m.

Coquitlam RCMP release video in search for witness to crash that killed girl, 13

Witness is described as a slim Asian man with short, black hair, no facial hair and wearing glasses

TransLink fares to go up on July 1

Fares will increase by a few cents to a few dollars

Two week lock down lifted after drugs, cellphone seized at Kent Institution

A search at the prison found nearly 26 grams of hashish and a cellphone

B.C. firefighters rescue frozen dog from ice

The fire crew found a dog stuck in the at Lake Paul on May 20

Most British Columbians agree the ‘big one’ is coming, but only 50% are prepared

Only 46 per cent of British Columbians have prepared an emergency kit with supplies they might need

B.C. man to pay Maxime Bernier’s People’s Party $20k over lawsuit

Federal judge shut down Satinder Dhillon’s ‘nonsensical’ motion to bar use of PPC name in byelection

Sitting and sleeping on downtown sidewalks could net $100 fine in Penticton

The measure, which still requires final approval, would be enforced between May and Sept. 30

Survey finds 15% of Canadian cannabis users with a valid licence drive within two hours of using

Survey also finds middle-aged men are upping their usage following legalization

Most Read