Ontario court: intoxication valid defense in sexual assault/violent crimes

[Syt]

https://www.cp24.com/news/women-s-group-angered-by-intoxication-ruling-but-concern-called-overblown-1.4969716

Women's group angered by 'intoxication' ruling but concern called overblown

TORONTO - A court ruling allowing people accused of sexual assault or other violent crimes to argue they were so intoxicated they didn't know what they were doing has angered women's-rights activists but civil libertarians call the criticism unwarranted.

A decades-old law had banned such a defence but Ontario's top court this week declared it unconstitutional for trampling on key rights of the accused.

The Women's Legal Education and Action Fund, which intervened in the case, called the decision a setback for victims, particularly of sexual assault.

"We are dismayed that women's rights to equality and dignity are not given more adequate treatment," the organization said on Thursday. "It also risks sending a dangerous message that men can avoid accountability for their acts of violence against women and children through intoxication."

Cara Zwibel, a director with the Canadian Civil Liberties Association, said the decision clarified the legal situation around use of the intoxication defence. While she sympathized with concerns the ruling would undermine protections for sexual assault victims, she said they were overblown.

"I don't see it as seriously undermining the rights of victims," Zwibel said. "This is a rarely used provision; it's not this widespread, systemic concern."

At issue was a law the federal government enacted in 1995 amid a backlash over a court ruling that recognized drunkenness could be raised to defend against a sexual assault charge.

The Appeal Court decision setting aside the law came in a pair of separate cases in which two men, both high on drugs, either killed or injured close relatives. Their defence, however, ran afoul of the ban on arguing extreme intoxication.

In overturning their convictions on Wednesday, Justices David Paciocco, David Watt and Peter Lauwers said a person must act voluntarily to commit a crime. While lawmakers might have sought to help victims attain justice, they said the law violated an accused's rights by holding them accountable for violence they really had no control over.

"It enables the conviction of individuals for acts they do not will," the court said. "To convict an attacker of offences for which they do not bear the moral fault required by the charter to avoid this outcome is to replace one injustice for another and at an intolerable cost to the core principles that animate criminal liability."

Megan Stephens, the legal fund's executive director and co-counsel on the intervention, said the ruling could further discourage women from reporting sexual assault.

"I recognize the importance of protecting the constitutional rights of all," Stephens said. "It is discouraging, however, that the security interests and equality rights of women and children receive only brief reference by the court given that they are disproportionately victimized by intoxicated offenders."

Jill Presser, a lawyer who argued the case for the civil liberties association, called the criticism unfounded. The justices, she said, were grappling with a highly complex legal flashpoint in which preventing wrongful convictions bumps up against the right of vulnerable Canadians to be free from violence.

"That's a really difficult meeting point in the law," Presser said. "While the bulk of the judgment doesn't focus on the victim, that animates the entire decision."

The decision still leaves the onus on an accused to come up with expert and other evidence to prove they were in a state of automatism to raise the intoxication defence successfully, Zwibel said. Simply claiming to have been drunk wouldn't cut it.

Provincial New Democrat politician Jill Andrew called on the Ministry of the Attorney General to try to fight the ruling. The Supreme Court of Canada, she said, should weigh the impact "on the lives of women, trans women and sex workers, their bodies, and the justice they deserve after surviving sexual assault or violence."

It's been a while, but I recall from my discussions in German law class 20+ years ago that the counter argument to this defense was that the accused (generally) got to this state of inebriation voluntarily and so the level of guilt might be reduced and lead to lower sentencing but not absolve completely from responsibility.

[frunk]

I'm only a mass murderer when I get wasted.

[Barrister]

I'm only a mass murderer when I get wasted.

If you want to get deep into the legal weeds, intoxication was always a (partial) defence to murder.

There are two kinds of offences in Canada (and the common law world) - there are general intent offences, and specific intent offences.  Specific intent offences are just that - you intend for a specific thing to happen e.g. I intend to cause someone's death.  General intent offences are just that you intend for something more much vague to happen e.g. I intend to hurt someone.  General intent vs specific intent is the difference between manslaughter and murder.

Intoxication was always a possible defence to specific intent offences, like murder.  But it wasn't that much of a defence, because it only reduces the offence from murder to manslaughter.

But if intoxication can be a defence to a general intent offence, then it means the entire charge goes away.

The sources in the article that say "well it's a very difficult defence to prove, it'll be rare" also ignore the practical effects of that.  It just means that only wealthy people will be able to access this defence, as it will require expensive expert witnesses.

[Malthus]

Some random thoughts in this, not having read the judgment yet:

Technically, the ruling makes sense. If you don't have the requisite mental state, you aren't guilty of the crime.

The problem is that drugs and booze give you the ability to change your metal state 'voluntarily', so it seems a travesty that extreme intoxication be treated the same as (say) insanity.

However, the distinction between the two is not always so clean.

Many who are insane also have the ability to change that - for example, schizophrenia can be controlled by drugs, but many people suffering from it do not want to take them because of bad side effects.

On the other side of the coin, many who become extremely intoxicated are suffering from addiction problems, so it may be questionable how much voluntary control they really have over their drinking or drug taking.

Punishing people for not taking their meds, or for allowing themselves to become very drunk or drugged, may also be unfair ... but not doing so leads to unfairness as well: why should someone who gets a bit drunk be charged with (say) a DUI, but someone who gets so drunk as to be an automaton get no punishment for the same thing?

It's a problem with our fault-based system. Crime is punished for fault, but we struggle with what fault means for those with impaired minds.

Another random thought: can someone be so impaired as to be an automaton, yet carry out a specifically sexual assault? These cases before the court dealt with violent assaults, but not sexual assaults. Seems to me at first glance that an automatism defence would never succeed on a charge of sexual assault.

[Syt]

I think it's reasonably possible that a dead drunk could molest someone (touching, groping, etc.) even though whisky dick or lack of coordination might make it impossible to "do the deed".

[Malthus]

Here's a link to the judgment for those interested:

https://www.canlii.org/en/on/onca/doc/2020/2020onca333/2020onca333.html?searchUrlHash=AAAAAQAZQXV0b21hdG9uICYgaW50b3hpY2F0aW9uIAAAAAAB&resultIndex=1

[Malthus]

I think it's reasonably possible that a dead drunk could molest someone (touching, groping, etc.) even though whisky dick or lack of coordination might make it impossible to "do the deed".

Dead drunk wouldn't be enough - you'd have to be so drunk you literally had no mental control over what you were doing (an "automaton"). The case law emphasizes that this means so wasted they are incapable of forming intent, even the intent referred to be BB above for a "general intent offence".

In short, not a case of whisky dick or being unable to "perform" - but one of not having the ability to *want* to commit the crime. Such cases would be rare.

[merithyn]

I think it's reasonably possible that a dead drunk could molest someone (touching, groping, etc.) even though whisky dick or lack of coordination might make it impossible to "do the deed".

Dead drunk wouldn't be enough - you'd have to be so drunk you literally had no mental control over what you were doing (an "automaton"). The case law emphasizes that this means so wasted they are incapable of forming intent, even the intent referred to be BB above for a "general intent offence".

In short, not a case of whisky dick or being unable to "perform" - but one of not having the ability to *want* to commit the crime. Such cases would be rare.

Right. I'm sure.

[viper37]

I think it's reasonably possible that a dead drunk could molest someone (touching, groping, etc.) even though whisky dick or lack of coordination might make it impossible to "do the deed".

Dead drunk wouldn't be enough - you'd have to be so drunk you literally had no mental control over what you were doing (an "automaton"). The case law emphasizes that this means so wasted they are incapable of forming intent, even the intent referred to be BB above for a "general intent offence".

In short, not a case of whisky dick or being unable to "perform" - but one of not having the ability to *want* to commit the crime. Such cases would be rare.

Right. I'm sure.

yep.  it will be extremely common for rich people, able to afford the expert.  Same as the bio-chemist defense for DUIs, in the past.  You could prove that despite being above 0,08 your judgement would still not be affected enough to be impaired in your driving.

[viper37]

In short, not a case of whisky dick or being unable to "perform" - but one of not having the ability to *want* to commit the crime. Such cases would be rare.

It won't be.  Lots of criminal using the insanity defense will now use it.  "I did not take my meds" will be as valid as "I did drugs and I lost track of everything".  It's already been used a few times.

More reason to legalize all drugs as the NDP suggested, it will be great, I guess, so many people now able to use silly defence theories.

[Valmy]

This strikes me as one of those things that theoretically is reasonable but in practice would be easily abusable.

[Barrister]

This strikes me as one of those things that theoretically is reasonable but in practice would be easily abusable.

I think that's always been understood, and why the law was drafted the way it was.

[frunk]

The thing is this is a defense as far as sentencing, not as far as guilt.  You body still committed the crime, and in fact you put your body in a state where it was easy for it to commit it. 

If this defense is used the minimum sentencing in these cases should be the individual is not allowed to partake of whatever caused them to commit the crime.  If they do then the full normal sentence should be applied, as they've shown themselves willing to put others at risk.

[Barrister]

The thing is this is a defense as far as sentencing, not as far as guilt.  You body still committed the crime, and in fact you put your body in a state where it was easy for it to commit it. 

If this defense is used the minimum sentencing in these cases should be the individual is not allowed to partake of whatever caused them to commit the crime.  If they do then the full normal sentence should be applied, as they've shown themselves willing to put others at risk.

1. The law actually says that intoxication is not a mitigating feature on sentence (though I've seen judges do it anyways).

2. But that's not what this case is saying.  This case says that extreme intoxication can be a defence to the charge itself if proven.

[Malthus]

I think it's reasonably possible that a dead drunk could molest someone (touching, groping, etc.) even though whisky dick or lack of coordination might make it impossible to "do the deed".

Dead drunk wouldn't be enough - you'd have to be so drunk you literally had no mental control over what you were doing (an "automaton"). The case law emphasizes that this means so wasted they are incapable of forming intent, even the intent referred to be BB above for a "general intent offence".

In short, not a case of whisky dick or being unable to "perform" - but one of not having the ability to *want* to commit the crime. Such cases would be rare.

Right. I'm sure.

yep.  it will be extremely common for rich people, able to afford the expert.  Same as the bio-chemist defense for DUIs, in the past.  You could prove that despite being above 0,08 your judgement would still not be affected enough to be impaired in your driving.

That's the concern at any rate.

Not sure if that concern would be borne out by actual practice, though. Judges and juries are just as alive to the potential for abuse as you and Meri are, which is why there is some reason to believe the Court of Appeal when they commented that such cases would be "rare".