The Nuanced and Polarizing Nature of the Extreme Intoxication Defense for Sexual Assault Cases in Canada

Posted on November 29, 2018

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shutterstock_1100447495This news commentary compares two articles on the recent decision by Ontario Superior Court Justice Nancy Spies in the case of R. v. McCaw, 2018 ONSC 3464 (“McCaw”) in which, s. 33.1 of the Criminal Code “was ruled unconstitutional as it violates a defendant’s right to be presumed innocent and their right to fundamental justice” under s. 7 and 11(d) of the Charter (and of no protection under s. 1). Spies also found a binding precedent set by Wallace J in R. v. Dunn, [1999] O.J. No. 5452 (S.C.) (“Dunn”). The first article, by Tom Spears for the Ottawa Citizen, offers a good analysis on the impact of the intoxication defense, but lacks detail on the case, Spies’ arguments and legal references. The second article, by Rosie DiManno for The Toronto Star, includes many of those omitted details but obfuscates such facts by using histrionic statements that mischaracterize Spies’ ruling as a license for intoxicated men to assault women.

Spears argues that despite its controversy the decision of the superior court will have little impact on future sexual assault cases. Using the opinion of a legal expert, Blair Crew, the article asserts that allowing McCaw to use the extreme intoxication defense is not “a finding that [he] has succeeded in the defense.” This distinction is at the core of Spies’ ruling and is further elucidated by Crew’s claim that such a defense rarely works. Drunkenness, to the point of blacking out, isn’t enough. A defense must prove, using medical evidence or the testimony of an expert, that a defendant’s level of intoxication rendered him (or her) oblivious to his actions to the point of automatism. It is a high standard to meet as Spears clearly outlines. Overall, this a good summary of the impact that such a defense might have on future cases.

Spears, however, does miss an opportunity to provide more insight into key elements of the ruling such as the statute’s history (as a response to R v Daviault (1994) 3 S.C.R. 63 (“Daviault”)), the Charter rights that were offended and the binding precedence set in Dunn. While he does mention that the “federal law is unconstitutional,” his references mostly stop there. One significant issue, for example, is Spies’ argument (as quoted in Affleck) that s. 33.1 “relieves the Crown of proving the specific mens rea for the charged offence and instead allows for proof of guilt on a different, and arguable lower, standard” – a clear violation of 7 and 11(d) of the Charter. With that said, the focus of his article was on the impact not the pith of the ruling.

The extreme intoxication defense – especially as it relates to sexual assault – is a complex legal area that has sparked a clash of perspectives since validated in Daviault and subsequently invalidated by s. 33.1 of the Criminal Code. In contrast to Spears’ more nuanced summary, DiManno’s article is quite seditious in nature. While providing relevant details and citations, she mischaracterizes Spies’ ruling as license for drunk men to commit sexual assaults. She begins by stating it is a criminal offense to drive a vehicle while impaired. While true, it is equally true that “extreme intoxication” could be used in such a case (if viable) whereas, s. 33.1 would render such a defense invalid in a case like McCaw. Significantly, and at the crux of Spies’ ruling, is that s. 33.1 was written to target sexual assault offenses, or more specifically, disallow such a defense when an alleged offense involves a crime against “the bodily integrity of another person” (s. 33.1(3)). How could such a rendering of the law be construed as constitutional?

DiManno does a great disservice to our judiciary by ignoring this nuanced point and in using inflammatory language to undermine how Spies reasonably interpreted the Charter violations and applied case law. DiManno refers to the ruling as “kicking out the underpinnings of a federal law specifically crafted against the too-drunk defense.” Ironically, such a prejudicial crafting of the law is at the core of why Spies ruled it invalid. Yet, DiManno implies that her carefully reasoned judgment was reckless. While acknowledging that “Daviault held that extreme intoxication akin to automatism or insanity must be recognized as a defense,” she ignores the high standard and obfuscates its validity by quoting “blunting the drunk defense [via s 33.1) was vital to protect women and children from violence.” Not only is the term “drunk defense” erroneous, but the idea that a defense is allowable for some, but not for others, is a blatant violation of the Charter.

Despite such irresponsible rantings (i.e. “Sharp legal minds will poke you in the common sense.”), DiManno is arguably attempting (albeit, recklessly) to mirror the public outrage on the ruling. This mirroring, however, does not justify using such punitive expressions to undermine the judiciary’s role in interpreting constitutional law. In fact, her tactics only serve to sensationalize and exploit the issue. Such polarizing views are also addressed in Spears but with a much higher standard and respect for the law. Crew does admit there is a legitimate concern by those who fear that future attackers may see this as a “green light” to get intoxicated, sexually assault someone and “escape criminal liability.” However, he allays that concern by asserting it would be an incorrect interpretation (application) of the law. He supports this idea by pointing out that only nine Canadians have used the defense since 1995, and in all nine cases, it failed. Unfortunately, there is a failure to reference any of the cases.

While Spears’ headline is more concise, DiManno’s is misleading. There has been no consensus on the validity of the intoxication defense since Daviault or to its post-invalidity under s. 33.1. What is not mentioned in DiManno’s article, and only touched on in Spears, is that the McCaw ruling is now binding in Ontario. While the validity of the statute has been questioned many times in both lower and superior courts, the decisions were split and not definitive. As Léo Fugazza states in his summary on McCaw, “Her conclusion goes beyond judicial comity, and instead finds a truly binding authority [Dunn].”[5] With s. 33.1 now ruled unconstitutional and “of no force of effect” in Ontario, it will be interesting to see how this defense plays out in the future and whether Spies’ thoughtful and comprehensive challenge to the statute makes its way to the SCC. Whatever the outcome, it is abundantly clear that the use of the extreme intoxication defense in sexual assault cases will remain a nuanced and polarizing issue.

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Posted in: Crime