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

Wide variety of art for sale at Art from the Heart show

Student art show runs Nov. 30 and Dec. 1 at the Chilliwack Cultural Centre

Blues group Angel Forrest Trio at Bozzini’s in Chilliwack

Award-winning band from Quebec performs Nov. 28

Laidlaw racer nets first place in B.C. among A-Class mud racers

Cody Leach has poured his energy and his hard-earned dollars into the sport he loves

Sunday Highway 1 search for Shawnee Inyallie yields no results

Searchers came from Hope, Chilliwack and as far away as Port Coquitlam

A look inside Hope’s 20-bed emergency shelter, just over a month since it opened

Manager Sharon Holburn and Gerry Dyble, executive director of HATS, answer questions about the shelter and homelessness in Hope

VIDEO: B.C. legislature clerk, sergeant at arms suspended for criminal investigation

Clerk of the House Craig James, Sergeant-at-arms Gary Lenz on administrative leave

Former NHL player and coach Dan Maloney dies at 68

Maloney coached the Toronto Maple Leafs and Winnipeg Jets

Ex-MSU president charged with lying to police about Nassar

Lou Anna Simon was charged Tuesday with lying to police during an investigation

Police aim to prevent retaliation after Hells Angel found dead under B.C. bridge

IHIT confirms Chad Wilson, 43, was the victim of a ‘targeted’ homicide

Otter makes a snack out of koi fish in Vancouver Chinese garden

Staff say the otter has eaten at least five fish

Police looking into two more incidents at private Toronto all-boys’ school

Police and the school have said two of the prior incidents involved an alleged sexual assault

B.C. lumber mills struggle with shortage of logs, price slump

Signs of recovery after U.S. market swings, industry executive says

25% of Canadians still won’t say they use pot, survey says

Statistics Canada poll says Canadians on average were 18.9 years old when they first tried pot.

Canucks’ 50/50 jackpot expected to surpass $1 million

The guaranteed prize for one lucky winner will be $500,000 minimum when Vancouver hosts LA Nov 27

Most Read