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“Is intoxication now a legitimate defence for sexual assault?”

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“I keep hearing about this ruling that intoxication is now a legitimate defence for sexual assault. What’s going on?“

This is a tough one, but bare with us as we try to break this down as thoroughly as possible. We want to know what you think! There’s also a template letter that you’re more than welcome to use, to send to your local MHA.

Violence Prevention Avalon East, NL: A red head leaning on the shoulder of a short-haired brunette, in front of a grey wall.

So, what’s going on?

On Wednesday, the Ontario Court of Appeal (Ontario’s highest court) removed Section 33.1 of the Criminal Code.

Section 33.1 was enacted under the Chretien government in 1995 to stop voluntary intoxication from being used as a legitimate defence in sexual assault cases, specifically, outlawing the automatism defence in cases of violence.

Click here to read Section 33.1 of the Criminal Code

33.1 (1) It is not a defence to an offence referred to in subsection (3) that the accused, by reason of self-induced intoxication, lacked the general intent or the voluntariness required to commit the offence, where the accused departed markedly from the standard of care as described in subsection (2).

33.1 (2) For the purposes of this section, a person departs markedly from the standard of reasonable care generally recognized in Canadian society and is thereby criminally at fault where the person, while in a state of self-induced intoxication that renders the person unaware of, or incapable of consciously controlling, their behaviour, voluntarily or involuntarily interferes or threatens to interfere with the bodily integrity of another person.

33.1 (3) This section applies in respect of an offence under this Act or any other Act of Parliament that includes as an element an assault or any other interference or threat of interference by a person with the bodily integrity of another person.

An easier explanation of Section 33.1

  • 33.1(1): Voluntary intoxication is not an acceptable defence, when it comes to harming another individual.
  • 33.1(2): Defines voluntary intoxication as when someone purposely becomes intoxicated and consumes to a point that they are incapable of consciously controlling their behaviour, and voluntarily or involuntarily hurts or threaten to hurt another individual’s body, physically or sexually.
  • 33.1(3): Defines harm as the voluntary or involuntary act of abusing another person’s body, physically or sexually, or threatening to do so during a state of intoxication.

The case that started it all

On May 30, 1989, a 73-year-old chronic alcoholic named Henri Daviault was asked to get some alcohol for his wife’s friend. The woman was a semi-paralyzed, 65-year-old who required a wheelchair.

Read more about R v Daviault

Daviault brought a 40 oz. bottle of brandy to the woman’s house around 6pm. The woman drank half a glass and then passed out, so Daviault drank the rest of the bottle as she slept. At some point in the evening, the woman went to the washroom, where she was accosted by Daviault, who took her into the bedroom and sexually assaulted her. Daviault was arrested and charged for sexual assault.

Daviault testified that, prior to drinking the woman’s brandy, he drank atleast seven beers at a bar. He claimed to have no recollection of what had happened until he woke up naked in the woman’s bed. He argued that during his drunken blackout, he was in automatism-like state. An expert witness in pharmacology testified to the likelihood of the defence; having drank as much as he did, there was little chance he could have functioned normally or been aware of his actions.

Based on the pharmacologist testimony, the judge found that Daviault was unable to form a general intent to commit the crime, and therefore, could be acquitted. There was quite a bit of backlash from the public, based on this ruling.

This case is what started section 33.1.

So why did they remove this law?

The Ontario Court of Appeal stated that Section 33.1 violates Section 7 and Section 11(d) the Canadian Charter of Rights and Freedoms because “… effects of Section 33.1 include the contravention of virtually all the criminal law principles that the law relies upon to protect the morally innocent, including the venerable presumption of innocence.“

Canadian Charter of Rights & Freedoms

In the Canadian Charter of Rights and Freedoms, Section 7 is a constitutional provision that protects an individual’s autonomy and personal legal rights from actions of the Government in Canada. Three types of protection within the section include the right to life, liberty and security of the person.

Section 11(d) states that people should be presumed innocent until proven guilty, according to law, in a fair and public hearing by an independent and impartial tribunal.

Specifically, this issue is related to two cases: Chan and Sullivan.

The Chan and Sullivan cases

Both cases are quite tragic. In the Chan case, he voluntarily consumed magic mushrooms, but had a very bad trip. He believed he was a deity, and that his father was the Devil. His father succumbed to stabbing injuries, as a result.

In the Sullivan case, he over-consumed prescription medication, in an attempt to take his own life. The suicide attempt failed, but left Sullivan in a state of extreme psychosis. He believed he was captured by aliens and in the midst of this psychotic episode, stabbed his mother (she lived, thankfully).

Chan and Sullivan were both guilty of violent offences because Section 33.1 disallowed the automatism defence, and they had both voluntarily taken the intoxicating substances.

Here’s the issue: It was concluded that Chan likely wouldn’t have intentionally killed his father, in any other scenario. Similarly, Sullivan was trying to end his own life; he had no intention of physically hurting his mother during that process.

How does Section 33.1 violate their rights, specifically?

First and foremost, please note that this section is to review the straight-forward facts as to why this law changed, based on Chan and Sullivan; it is not an argument for the change.

Read more...

Section 33.1 violates both Sections 7 and 11(d) of the Charter, meaning it allows people to be found guilty and put in jail for something they did involuntarily, and allows the judge to charge someone as guilty, even if there’s some reasonable doubt. The way the Court states it, “The existing law is clear that voluntariness must attach to the offence charged.  Not some other action.  Unless drinking alcohol is an offence, that voluntary act cannot be the voluntary act on which a conviction rests.”

While voluntary consumption of intoxicating substances led to a tragic ending, they did not voluntarily go into a state of psychosis or consume the mushrooms in order to assault/murder someone. The act of consuming the intoxicating substances doesn’t equate to assault/murder of another individual. The Chan and Sullivan cases were impacted by Section 33.1 due to it’s broad nature, despite not being the original target audience for this law.

The Court requires proof of actus reus and the mens rea, in order for a crime to have been committed. At the same time, Section 33.1 allows the exact opposite; it allows a person to be found guilty of an offence, even without those two elements. While both cases have threads of both throughout, there are still instances when judges can have an exception, from what we’ve understood, and cases like Chan’s and Sullivan’s are on that outlier spectrum.

Finally, Section 33.1 allows people to be imprisoned for an act, even though their cases don’t meet criteria for even the lowest level of legal fault in Canadian criminal law; penal negligence. An easy example of this would be dangerous driving in a school zone. You know you could possibly hurt yourself or others by driving way over the speed limit, but you decide to do it anyways because you’re running late for a meeting. You didn’t mean to hit someone with your car in the process, but it is a likely outcome if your speed is too high in a school zone. Society holds drivers to a standard that, if they have a driver’s license, they should know this is a risk, and to respect the speed limits put in place.

In the cases of Chan and Sullivan, there is no foreseeable link between consumption and these specific outcomes, and no reason for any sound-minded person to think that taking magic mushrooms or trying to end your life could possibly lead to the outcomes that occurred.

Trying to overdose to end your life doesn’t often lead to you surviving, then looking at your mother, but in your eyes, you physically see an alien trying to abduct you. Taking magic mushrooms doesn’t usually lead to murder, either. While we do not encourage illegal drug use or drug misuse, magic mushroom usage is commonly linked to lower crime rates and actually helps people with issues such as PTSD. They broke the law with consumption of illegal drugs, and of course murder/assault of another human being isn’t legal either, but neither of these cases can legally fall into the category of “penal negligence“, for this reason.

Finally, there’s the idea of “marked departure”. Chan wasn’t looking to reach a state of automatism; Chan took a small amount in a seemingly safe space (his home), but had an abnormal, unforeseeable reaction. Meanwhile, Sullivan didn’t try to get high; he tried to end his life completely. While it wasn’t a reasonable way to act or behave, the real outcomes Chan and Sullivan experienced weren’t a reasonable expectation, either.

There’s a lot to unpack and process, here.

We get it. We focus on social services and can help coordinate legal support if needed, but we’re not legal experts, ourselves. This news has been educational for us as well, so we reached out to a few friends in the local legal profession, for their input. With general consensus, they explained that intoxication is still not a defence to sexual assault or other violent crimes, even though Section 33.1 has been dropped. In the Court of Law, no survivor of violence should be more at risk of their abuser being let go, than they previously were.

The law that was overturned was targeted to deal with a small set of circumstances – particularly when someone is so intoxicated, they lack the mental capacity to control their body. Automatism is VERY high bar to meet, and is rarely even able to be considered as a defence in the Court.

So what does this all mean?

The cases that caused the removal of this law had nothing to do with sexual assault, but there are still real, negative implications and consequences, now that this law is gone. This is still a step backwards in the #MeToo movement.

Why are women’s and anti-violence groups upset?

We have every right to be upset.

The primary worry isn’t so much that the court would utilize this argument in favour of an abuser, in a violent or sexual assault case in the future; the current worry is more so related to the way in which this change was rolled out, and the initial unclear messaging surrounding this news and the consequences it may have.

Check out this headline:

Additionally, the National Post released an article shortly after, titled, “Ontario court throws out law barring self-induced intoxication as defence for sexual assault.” Look at the way the media released this change. It’s blatant, it’s shocking, and most importantly, it’s incorrect.

The way in which they broadcast this change to the world creates an even larger problem than the removal of the law, itself.

The risk created by unclear media messaging

From a survivor-servicing standpoint, we see similar news situations to these ones make abusers/potential abusers feel as though they won’t be as accountable for their actions, and we see more violent incidents happen directly after these kinds of news releases occur.

Frankly, this scares us. We know that in Canada, women and girls are most often killed by someone who is under the influence of an intoxicating substance (63%), and that number is even higher in boys and young men (70%). And of course, disproportionately, women and children face domestic abuse far more often than their male counterparts.

With added pressures and struggles from COVID-related isolation, economic instability, and the unsettling things happening right now from a macro perspective, we fear it would add more fuel to the fire. Since the start of COVID-19 social distancing measures in March, our daily calls for help have already increased from 1-2 each day, to 7-8 each day. Of course, we want anyone who needs support to reach out, but we don’t want to see the creation of more cases of abuse.

The Court and the media both play a role in fixing this.

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

The Women’s Legal Education and Action Fund (WLEAF)

It’s possible that WLEAF’s statement has been misinterpreted by a lot of people, because some people are arguing that their upset is overblown. We don’t think they were condemning the decisions of the Chan or Sullivan case, and we believe WLEAF understands that the Court didn’t remove Section 33.1 for the same reason in which it was created.

This is where the issue lies, in terms of women’s rights to equality and dignity:

Care wasn’t taken to ensure this change was rolled as smoothly as it could have been. Did nobody consider engaging with Communications professionals to talk about the potential risks this has on women and children’s safety, when relaying the message of this legal change to external communications?

If they’re removing Section 33.1 because it is targeting different offenders than it was originally intended to, then why not re-write the law to more accurately pinpoint the type of offender you’re trying to seek justice from, than remove the law altogether, with no substitute to protect the original group of people you were trying to protect, in the first place?

Whether or not the Court tries to use automatism as a legitimate defence (which as we mentioned, several people in the legal community have said is a hard defence to make, in and of itself), the major issue lies in the fact that the way they rolled out this change, could actually spark more domestic abuse cases.

To the decision makers: Why did you have to drop an entire law, without providing substitute protection for those in which you were originally trying to protect? If the law is too broad, re-write it so it more accurately targets the kinds of offenders you’re looking to seek justice from.

To the internal communications professionals who shared this information the way they did, initially: Why? Why didn’t you take due diligence to ensure that the Govt of Canada released a clear, concise statement, preventing the external media from jumping on this topic in a fear-mongering way? Why not put out a statement as to how this law change can affect future situations of intoxicated abuse, versus solely focusing on why they made the change for the Chan and Sullivan case? We know that IPV was mentioned in your discussions around dropping this law; why not address this with the public at-large, as well?

To the media: Please, please, please, remember the reason why you are journalists. You are here to be the voice to, and the voice of your communities. Have respect for your profession and have respect for the people who rely on your journalism; wait until you have all of the facts. You are moving feminism backwards, as a result of posting these kinds of news releases, like the ones posted above. We know you are trying to help spread news, and we know you’re well-intentioned, but it’s better to be correct, than to be one of the first to report on it.

We also want to recognize that this is a huge topic of discussion. How can you summarize such a topic into a short headline? It’s not easy, but there’s got to be a better way than what was done. How about instead of, ‘Ontario court throws out law barring self-induced intoxication as defence for sexual assault.’, say, “Ontario court reconsiders the way it looks at automatism in criminal cases.” It’s just as jarring, but with the right explanation within the article itself, a lot of this outrage could’ve been avoided. Is a clickbait title really worth it?

Trauma: This is triggering survivors of violence

Many of the people who work with Violence Prevention Avalon East are survivors of violence, themselves. While you learn to cope and try to move on from the trauma, you never fully heal. You never forget the feelings and anxieties associated with that time period. The grief of what you’ve experienced will always find ways to creep back into your life, no matter how well things seem to be going, as you move forward.

This information has been a huge trauma trigger for many survivors of violence, and it has been heartbreaking. They already feel injustice from their past and had enough of a struggle getting to a place of peace and safety, even when this law was in place. Seeing a piece of protection taken away from society only brings those feelings of hopelessness back.

Long story short: The Court tried to provide justice for two individuals, and inadvertently put thousands more at risk, as a result. THIS is negligence.

What can you do about it?

Reach out to your MHAs. Voice your concern, and ask for a thoughtful response. Send them links so they educate themselves and understand the real context/consequence of what is happening, surrounding the removal of Section 33.1 from the Canadian Criminal Code.

For those of you who want to voice your concerns, you are more than welcome to use the template letter, below. We’ve highlighted changeable areas in yellow, but you can also use it as a starting point to voice your concerns in your own way, if you wish.

Draft Letter to MHADownload

Reach out to us

Does this recent news leave you feeling worried about your own personal situation, or the living situation of a loved one? Please contact us and we will do everything we can to support you.

Sources Used

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